Resource Book on the Legal Framework on Anti Human Trafficking · legal framework in the light of international and regional legal standards on trafficking; and provide, where necessary,

Resource Book on the Legal Framework

on Anti Human Trafficking

Government of India

Resource Book on the Legal Framework

on Anti Human Trafficking

Government of India

Legal Framework final.pmd 11/7/08, 5:08 PM1

Resource Book on the Legal Framework on Anti Human Trafficking 2

© UNODC, 2008

Year of Publication: 2008

A publication ofUnited Nations Office on Drugs and CrimeRegional Office for South Asia

EP 16/17, Chandragupta MargChanakyapuriNew Delhi - 110 021www.unodc.org/india

DisclaimerThis Resource Book has been developed by National Law School of India University,Bangalore in association with Project IND/S16 of United Nations Office on Drugs andCrime, Regional Office for South Asia. The opinions expressed in this document do notnecessarily represent the official policy of the Government of India or the United NationsOffice on Drugs and Crime. The designations used do not imply the expression of anyopinion whatsoever on the part of the United Nations concerning the legal status of anycountry, territory or area or of its authorities, frontiers or boundaries.

Poster developed by: Prajwala, Hyderabad

Designed and printed by:ISHTIHAARTel: 91-11-23733100


3Resource Book on the Legal Framework on Anti Human Trafficking

C O N T E N T S

PREFACE ........................................................................................... 7

Chapter 1. INTRODUCTION ...................................................................... 8Scope .................................................................................. 9Definitions ......................................................................... 10

Chapter 2. GENERAL PROVISIONS IN CRIMINAL LAWWITH RESPECT TO HUMAN TRAFFICKING

2.1 Introduction ....................................................................... 132.2.1 Broad Overview ................................................................... 132.2.2 The Indian Penal Code, 1860 ................................................ 142.2.3 The Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 ...................................... 192.2.4 The Juvenile Justice (Care and Protection

of Children) Act, 2000 ......................................................... 192.3 Organized Crimes and Trafficking in Human Beings................. 20

2.3.1 The Indian Penal Code, 1860 ................................................ 212.3.2 Prevention of Corruption Act, 1988 ....................................... 212.4. Provisions for Inter-Country Trafficking ................................. 23

2.4.1 The Indian Penal Code, 1860 ................................................ 23 2.4.2 Citizenship Act, 1955 .......................................................... 242.4.3 The Foreigners Act, 1946 ..................................................... 242.4.4 Immigration (Carrier’s Liability) Act, 2000 ............................. 242.4.5 Indian Passport (Entry into India) Act, 1920 .......................... 24

Annexure 1: Maharashtra Control ofOrganized Crime Act, 1999 ................................................... 26Endnotes ............................................................................ 35

Chapter 3. COMMERCIAL SEXUAL EXPLOITATION ANDHUMAN TRAFFICKING

3.1 Introduction ....................................................................... 613.2 Special Provisions Relating to Commercial

Sexual Exploitation of Women .............................................. 613.2.1 The Indian Penal Code, 1860 ................................................ 613.2.2. Immoral Traffic (Prevention) Act, 1956.................................. 63

3.3 Special Provisions Relating to CommercialSexual Exploitation of Children ............................................ 68

3.3.1 The Indian Penal Code, 1860 ................................................ 683.3.2 Juvenile Justice (Care and Protection of Children) Act, 2000 ... 70

3.4 Sexual Exploitation due to Cultural Practices ......................... 703.4.1 Religious Institutions (Prevention of Misuse) Act, 1988 .......... 70

3.5 Sex Tourism and Trafficking ................................................. 70



3.6 Special Provisions Relating to Pornography and Trafficking ..... 713.6.1 The Indian Penal Code, 1860 ................................................ 713.6.2 Indecent Representation of Women (Prohibition) Act, 1986 ..... 72

3.6.3 Information Technology Act, 2000 ........................................ 723.6.4 Young Persons (Harmful Publications) Act, 1956 .................... 72

Annexure I: The Goa Children’s Act, 2003 .............................. 73Endnotes ............................................................................ 85

Chapter 4. HUMAN TRAFFICKING AND LABOUR LAW4.1 Introduction ....................................................................... 97

4.1.1 Relevance of the General Provisions to Labour Trafficking ....... 974.2 Special Provisions Relating to Trafficking

for Labour: Child Labour ...................................................... 974.2.1 Introduction ....................................................................... 974.2.2 Child Labour (Prohibition and Regulation) Act, 1986 .............. 984.2.3 The Children (Pledging of Labour) Act, 1933 .......................... 984.2.4 The Juvenile Justice (Care and Protection

of Children) Act, 2000 ......................................................... 994.2.5 Bonded Labour System (Abolition) Act, 1976 ......................... 99

4.3 Safety and Welfare Provisions ............................................... 994.3.1 Introduction ....................................................................... 994.3.2 The Employees’ State Insurance Act, 1948 ............................1004.3.3 The Factories Act, 1948 ......................................................1004.3.4 The Mines Act, 1952 ...........................................................1014.3.5 The Merchant Shipping Act, 1958 ........................................1014.3.6 The Motor Transport Workers Act, 1961 ................................1014.3.7 The Apprentices Act, 1961 ..................................................1014.3.8 Minimum Wages Act, 1948 ..................................................1024.3.9 The Plantation Labour Act, 1951 .........................................102

4.3.10 Sales Promotion Employee (Conditions of Service) Act, 1976 ..1024.3.11 Beedi And Cigar Workers (Conditions of

Employment) Act, 1966 ......................................................1024.3.12 Inter-State Migrant Workmen (Regulation of

Employment Conditions) Act, 1979 ......................................102Annexure 1: Table of Implementing Authoritiesunder some Labour Enactments ...........................................103Endnotes ...........................................................................104

Chapter 5. MISCELLANEOUS OFFENCES ASSOCIATED WITH TRAFFICKING5.1 Adoption and Trafficking ....................................................123

5.1.1 The Hindu Adoptions and Maintenance Act, 1956 ..................1235.1.2 The Guardians and Wards Act, 1890......................................1245.1.3 CARA Guidelines ................................................................1245.1.4 Juvenile Justice Act, 2000 ..................................................124

5.2 Transplantation of Human Organs and Trafficking .................1245.2.1 The Indian Penal Code, 1860 ...............................................1245.2.2 Transplantation of Human Organs Act, 1994 .........................125

5.3 Organized Crimes and Trafficking in Human Beings ................1255.4 Trafficking for the Purpose of Marriage.................................1265.5 Miscellaneous ....................................................................128

Endnotes ...........................................................................129



Chapter 6. INTERNATIONAL LAW STANDARDS RELATINGTO HUMAN TRAFFICKING

6.1 Introduction to International Law .......................................1366.2 International Law and Trafficking ........................................1366.3 Roles and Responsibilities of Key Players in

International Law ..............................................................1406.4 Rights of Victims ...............................................................1416.5 Extradition ........................................................................1416.7 Organised Crime .................................................................142

Annexure IList of UN Treaties and Treaty Bodies ....................................................145

Annexure IIStatus of International Instruments Signed/ Ratified by India ................146

Annexure IIIList of ILO (International Labour Organization)Conventions Ratified by India ..............................................................147

Annexure IVImportant International Documents Dealing withOrganized Crime and Human Trafficking ................................................148Endnotes ........................................................................................159

ACRONYMS ........................................................................................167



ACKNOWLEDGMENTS

Ms. Ashita Mittal, Deputy Representative, UNODC, Regional Office for South Asia

The Working Group of Project IND/ S16:Dr. Geeta Sekhon, Project CoordinatorMs. Swasti Rana, Project AssociateMr. Varghese John, Admin/ Finance Assistant

UNODC is grateful to the team of National Law School of India University,Bangalore, for developing this document:Ms. Sarasu Esther ThomasMr. Aditya KamathMs. Chitra BalasubramaniamMs. PS SujathaDr. V S Elizabeth

UNODC acknowledges the support of:Dr. P M Nair, Indian Police ServiceMr. K Koshy, Director General, Bureau of Police Research and DevelopmentMr. N S Kalsi, Joint Secretary, Ministry of Home AffairsMs. Manjula Krishnan, Economic Advisor, Ministry of Women and Child Development



PREFACE

Trafficking of women and children is one of the gravest organized crimes and

violations of human rights, extending beyond boundaries and jurisdictions.

Preventing and combating of human trafficking requires all stakeholders to integrate

their responses on prosecution, prevention and protection. Keeping this philosophy

in mind, Project IND/S16 of the United Nations Office on Drugs and Crime (UNODC),

which is a joint initiative of UNODC and Government of India, with support from

the US Government, has undertaken several initiatives since its launch in April

2006 in India. This project is focused on “Strengthening the law enforcement response

in India against trafficking in persons, through training and capacity building”.

The major activities in the project are training of police officials and prosecutors,

setting up Anti Human Trafficking Units, establishing networks among law

enforcement agencies and civil society partners as well as developing appropriate

resource tools including Protocols, Manuals, Standard Operating Procedures (SOP),

Compendiums and other training aids.

The Resource Book on the Legal Framework on Anti Human Trafficking has been

designed to collect, review and analyze the relevant national legislations,

international and regional instruments and judicial precedents that bring out the

full range of crimes which comprise human trafficking; to analyze the existing

legal framework in the light of international and regional legal standards on

trafficking; and provide, where necessary, recommendations.

This Resource Book for the law enforcement officials and other stakeholders is an

attempt to sensitize them regarding the effective role that they can play under the

various available laws on trafficking. It is hoped that a proper reading of the law

will lead to its better enforcement; victims will be rescued more effectively,

appropriate protective measures will be ordered looking to the age of the victims

and they will have a better chance of reintegration in society.

This Resource Book has been developed by National Law University of India, Bangalore

in association with UNODC and has received valuable inputs from senior judges,

prosecutors, police officials and civil society organizations. The document has been

prepared in a simple lucid style with cross – references to legal provisions and

judicial pronouncements. It is a concise, practical and user friendly tool which will

be of use to all stakeholders working in the field of anti human trafficking.



Chapter 1

Introduction



INTRODUCTION

Human trafficking has a history coterminous with that of society and has existed in various forms inalmost all civilizations and cultures. It is a trade that exploits the vulnerability of human beings,especially women and children, in complete violation of their human rights. It makes human beingsobjects of financial transactions through the use of force, duress or deception, for various purposes,chief among them for commercial sexual exploitation and for exploitative labour.

It is well established that trafficking in persons is a multi-dimensional form of exploitation. Theexploitation may be for many reasons - prostitution, other sexual exploitation, forced labour, begging,forced marriages, adoption, transplantation of human organs, etc. It raises important questions ofhuman rights protection especially of vulnerable sections like women and children. It is an organizedcrime extending beyond boundaries.

There is a need world over to strengthen mechanisms to combat trafficking. In this context a series ofinitiatives have begun involving key groups like police, prosecution, judiciary, NGOs, etc. in order toensure that response to trafficking is made effective.

Although there are a number of studies dealing with trafficking, they generally focus on specific aspectslike prostitution, pornography, child trafficking, etc. It was thus imperative to have a comprehensivelook at all substantive legal provisions which had a bearing on human trafficking. This document aimsat looking afresh at the legal framework relating to trafficking. It analyzes legislations relevant totrafficking and looks at important cases dealing with specific points of law.

Since the main target group is the law enforcement and justice delivery systems, including police,prosecutors and judiciary, analysis of legal provisions have been done from this perspective. Additionally,vulnerable sections such as women and children and the protection of their human rights have alsobeen addressed. Gaps in terms of definitions and interpretations have also been discussed where everrelevant.

Scope

This document makes an effort to:

1. Collate legal provisions relating to trafficking - domestic as well as cross border2. Analyze the existing framework on the substantive law on trafficking3. Look at ancillary legislations which may have a bearing on trafficking4. Study major court decisions which could help in using substantive provisions on trafficking and

related areas5. Understand trafficking as an organized crime and look at legal provisions in domestic law which

could help tackle this problem6. Look at the roles played by different stakeholders within the legal framework7. Identify international standards on trafficking and also on organized crime.

The presentation in this document has been done keeping in view the requirements of the targetgroups. The following tips may be useful for the reader: -

• A quick perusal of the Table of Contents will enable the reader to refer to the relevant Chapter.• Each Chapter deals with broad themes and has been subdivided into smaller sub Chapters (labour,

criminal etc.).• Within each broad theme one can find Sub Chapters dealing with specific issues (e.g. within the

Chapter on Miscellaneous Offences there are provisions relating to begging, transplantation oforgans, etc.).



1 The Trafficking in Persons Protocol adopted by the UN General Assembly ( Resolution 55/25) on 15 November 2000. Itcame into force on January 28, 2004. India signed it on 12 December 2002.

2 The Annotated Guide (2002) to the Complete UN Trafficking Protocol consisting of The UN Protocol to Prevent, Suppressand Punish Trafficking in Persons, Especially Women and Children provides a definition of “exploitation”.

3 The Smuggling of Migrants Protocol, adopted by the UN General Assembly (Resolution 55/25) on 15 November 2000.India signed it on 12 December 2002.

• In all cases General Provisions of Criminal Law need to be looked at and relevant sections need tobe applied to any type of trafficking.

• A combined system of footnoting and end noting is used. Footnotes list names of cases andpertinent comments while endnotes give the extracts of relevant legal provisions.

Definitions

According to the UN Trafficking in Persons Protocol1, ‘trafficking in persons’ is: -

• the action of recruitment, transportation, transfer, harbouring on receipt of persons• by means of the threat or use of force, coercion, abduction, fraud, deception, abuse of power or

position of vulnerability or giving payments or benefits to a person in control of the victimfor the purposes of exploitation, which includes exploiting the prostitution of others, sexualexploitation, forced labour, slavery or similar practices, and the removal of organs

The ‘consent’ of a victim of trafficking shall be irrelevant where any of the meansset forth above have been used. ‘Consent’ is irrelevant in case of children even ifthis does not involve any of the means set forth above.

• Recruitment• Transportation• Transfer• Harbouring• Receipt...

of persons

ACTIVITIES MEANS/METHODS PURPOSE/INTENTION(any of these) (any of these) (any of these)

• Threat• Force• Other forms of coercion• Abduction• Fraud• Deception• Abuse of:

- Power- Position ofvulnerability

• Giving or receiving ofpayments or benefits

For the purpose of exploitation2

• Prostitution of others• Other forms of sexualexploitation• Forced labour or services• Slavery or practices similarto

slavery• Servitude• Removal of organs

This definition should be read with another Protocol, the UN Smuggling of Migrants Protocol3, whereinArticle 3 (a) defines smuggling as “the procurement in order to obtain, directly or indirectly, a financialor other material benefit, of the illegal entry of a person into a State Party of which the person is nota national or a permanent resident”. This definition thus contains the following elements -

• The procurement of illegal entry• Into a State of which the person is not a national or a permanent resident• To obtain direct financial or other material benefit



4 See, Human Trafficking - Reference Guide for Canadian Law Enforcement, May 2005, University College of the FraserValley Press, p. 10

5 Article 23 prohibits traffic in human beings and begar and other similar forms of forced labour. Article 24 prohibitsemployment of children below 14 years of age in factories, mines or other hazardous employment. Article 39 states thatmen and women should have the right to an adequate means of livelihood and equal pay for equal work and should notbe forced by economic necessity to enter unsuitable avocations. Children and youth should be protected againstexploitation. Article 39A says that the legal system should ensure that opportunities for securing justice are notdenied to any citizen because of economic or other disabilities. Article 43 upholds the right to a living wage.

It may be noted that trafficking has a connotation of commercial gain and two additional elementsbeyond smuggling must be present - there must be some improper form of recruitment, such as coercion,deception or some abuse of authority and the activity must have been undertaken for an exploitativepurpose although that purpose need not necessarily have been fulfilled.4

Therefore, smuggled migrants (who may have consented initially to be smuggled) may be tricked orcoerced into exploitative situations. In practice, this may appear to be smuggling, but when one gathersevidence, it will establish trafficking.

The Constitution of India prohibits trafficking in human beings and makes it a Fundamental Right ofevery person5. In addition, freedom from exploitation is a theme running through the Directive Principlesof State Policy as well.



Chapter 2

General Provisions inCriminal Law with Respect toHuman Trafficking



2.1 Introduction

The general provisions dealt with in this chapter may form the foundation for prosecution of cases oftrafficking, whatever be the purpose of such trafficking. These provisions need to be coupled with thosespecifically attracted based on the purpose of trafficking and the surrounding circumstances of thecase.

The General Provisions are primarily provisions of the Indian Penal Code (IPC). However, it also includesprovisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which canbe used if the victim belongs to the Scheduled Castes or Tribes and the offender does not, as well as theprovisions of the Juvenile Justice Act, 2000 which are applicable if the victim (or even the offender) isa child.

2.2.1 Broad Overview

The table below gives a broad overview of the general provisions discussed in this Sub-Chapter. Provisionsdealing directly with trafficking, labour etc are dealt with in their respective chapters

Sr. No. Indian Penal Code, 1860 Section

A Kidnapping/Abduction 359-368

B Wrongful Restraint & Wrongful Confinement 339-348

C Acts Done in Furtherance of Common Intention 34

D Abetment 107-120

E Criminal Conspiracy 120A, 120 B

F Criminal Force/ Assault 349-356

G Cheating 415-418

H Criminal Trespass 441

I Criminal Intimidation 503-509

J Rape 375-376

K Unnatural Offences 377

L Hurt 319-338

M Causing Miscarriage 312-318

N Attempt to Commit Offences 511

O Slavery 370-371

The Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989

Punishment for Offences of Atrocities 3

The Juvenile Justice (Care & Protectionof Children) Act, 2000

A Cruelty 23, 27

B Begging 24

C Intoxicating, etc. 25

D Exploitation of Child Employee 26

E Alternate punishment 28



2.2.2 Indian Penal Code, 1860

A. Kidnapping / Abduction (359-368)i

Forms of kidnapping include kidnapping of minor or person of unsound mind from lawful guardianship.The primary acts that form a foundation for trafficking is obtaining possession or custody of the personwho is to be trafficked. Section 361 will be attracted unless the guardian of the minor consents to givingup custody of such person temporarily or permanently. Such consent has to be with full knowledge ofthe reasons for which such transfer of custody is made. If the person is later subject to acts not consentedto by the guardian, this Section is attracted1. If any person, minor or otherwise is conveyed beyond thelimits of India without the consent of the person or guardian, it would be considered to be kidnappingfrom India under Section 360.

A minor is defined in these provisions as one who is under the age of eighteen if female and undersixteen if male. Distance is not relevant to the crime of kidnapping u/s. 361 IPC. It is sufficient if aperson is taken away from the custody of lawful guardianship, without consent, by another. There is nomention of the use of force in these provisions. Use of deceitful means like a promise of wealth, sweets,clothes, marriage, etc. amounts to ‘enticing.’ Persuasion by the accused person, which creates willingnesson the part of the minor or person of unsound mind to be taken out of the keeping of the lawfulguardian, would be sufficient to attract the Section2. The offence under this Section is committed theminute the person is out of the keeping of the guardian without the guardian’s consent. The consent ofthe person itself is irrelevant3. The offence is not committed against the minor itself but against theguardian. Proof of age of the minor can be in the form of a birth certificate or, in its absence, a schoolcertificate, and in the absence of all records, medical evidence4 may be given5. A claim by the guardianthat a minor under his custody has been kidnapped is sufficient to register a case.

The offence is cognizable, bailable, noncompoundable, and triable by a Magistrateof the First Class. The offence is punishable u/s. 363 of the IPC, with imprisonmentof either description for a term that could extend up to seven years and also fine.

Different forms of kidnapping can be attracted in cases of trafficking, such as kidnapping for begging6.Sometimes kidnapping may be coupled with other offences like wrongful confinement to form a specificoffenceii. The intent to confine shall suffice and actual confinement is not necessary7. It is ver1y seldomthat people who are kidnapped are kept in the open or in such a manner as to be easily discovered bythose having an interest in them.

The offence u/s. 363-A IPC is cognizable, non-bailable, and non-compoundable,punished with imprisonment of either description for a term that may extend toten years, and also be liable to fine. This offence is triable by a Magistrate of theFirst Class (if the punishment is imprisonment for ten years) or the Court of Sessions(if the punishment is imprisonment for life and fine)iii.

1. For the extent to which consent can be inferred, See Sindhu Krishna Thakur v. State of Maharashtra, 1993(2) Crimes383(Bom), 1992(3) Bombay CR 224

2. State of Haryana v. Raja Ram, 1973 Cri LJ 651: 1973 AIR (SC) 8193. Dalchand v. State of U.P, AIR, 1969 All 216, 1969 Cri LJ 5854. Medical tests such as ossification are commonly used in India to determine age.5. Rajan and Others v. State of Rajasthan, 2002(108) Cri LJ 31526. Section 363A, IPC7. Akbar Ali v. King Emperor AIR 1925 Lahore 614



It is not necessary that the kidnapper/ abductor should be the same person as the one who conceals akidnapped/ abducted person. The law makes the persons who conceal equal offenders with the actualabductor.iv This provision of law can be made use of against a brothel owner/ brothel manager/ brothelmadam or the person who employs the trafficked person for labour, etc., if they have knowledge ofkidnapping/ abduction. The person who conceals shall be punished in the same manner as if he himselfhad kidnapped or abducted such person with the same intention or knowledge as the kidnapper/abductor.

B. Wrongful restraint (339)v & Wrongful confinement (340)vi

Instances of kidnapping and abduction may involve wrongful restraint at some point or the other. Thepunishment is prescribed under Section 341 which stipulates punishment with simple imprisonment fora term which may extend to one month, or with fine which may extend to five hundred rupees, or withboth.vii

The offence of wrongful restraint u/s. 339 IPC is cognizable, bailable, compoundable,and triable by any Magistrate.

Trafficked persons are often transported to places that are at some distance from their hometowns andmay be confined all through the process. The requirement is confinement to circumscribed limits, andhence a vehicle or even a public place like a station can be the area in which one is confined. The actwhich is punishable is the obstruction of movement. There is no maximum time period of confinementwhich is necessary to constitute this offence. Section 342 prescribes imprisonment of either descriptionfor a term which may extend to one year, or with fine which may extend to one thousand rupees, orwith both.viii

The offence is cognizable, bailable, compoundable, and triable by any Magistrate.

Some forms of wrongful confinement carry greater punishment.ix

C. Acts done by several persons in furtherance of common intention (34)x

Crimes of human trafficking are rarely committed by one person alone. Such offences involve multipleoffenders. It involves various players like spotter, recruiter, buyer, transporter, seller, etc.8 In traffickingcases, offences of varying kinds are committed by all of them as long as their intention is common.However, for Sec. 34 to apply, a criminal act should have been committed. Common intention is difficultto prove and as such has to be inferred from the facts and circumstances of each case. Common intentionimplies a pre-arranged plan and a meeting of minds of the persons involved.9

D. Abetment of offences (107-120)

Abetment includes:1. Instigation to do a thing2. Engaging in a conspiracy to do a thing if an act or illegal omission takes place in pursuance of this3. Intentionally aiding the doing of a thingxi

Where a crime has been committed and no punishment is specified under the Indian Penal Code for itsabetment, the abettor is punished as if he has committed the crimexii. However, the intention of theabettor has to be looked into, and it is only an offence that has been committed with the intention or

8. See, Standard Operating Procedures on Investigation of Crimes of Trafficking for Commercial Sexual Exploitation, UNODC,2007

9. Surendra Chauhan v. State of M.P., 2000 Cri LJ 1789 (SC), AIR 2000 SC 1436



knowledge of the abettor that can be punished.xiii Where the abettor abets one act and another is doneby the accused, he is liable for abetting the act done, as long as it is a probable consequence of theabetmentxiv. If the effect of the offence abetted is likely to cause another offence, the abettor is liablefor such offence also. For example, if A abets B in causing grievous hurt to C, knowing that such hurt cancause death, and death occurs, A is liable for abetting murderxv. If a person, who would have beenconsidered an abettor had he been absent from the scene of commission of the offence, is present atsuch scene, he is deemed to have committed the offencexvi.

If any person abets the commission of an offence that is punishable with death or life imprisonment,and such offence fails to be completed, the abettor is punishable with imprisonment up to seven yearsand fine. If the harm is done, he is liable to imprisonment for up to fourteen years and finexvii. If theoffence abetted is punishable with imprisonment and the offence is not completed, the abettor ispunishable with one-fourth of the longest term that is prescribed for the offence itself.xviii

If the abettor or person abetted is a public servant or a police officer, who has a duty to prevent theoffence that was committed, the offender may be punished with imprisonment of any description forhalf of the maximum imprisonment prescribed for that offence.

In offences like trafficking, the activities of multiple accused make it possible to establish that many ofthem are abettors and hence they may be appropriately charged under the above said provisions.

E. Criminal Conspiracy (120A & 120B)xix

These provisions are of great relevance in preventing human trafficking. The very fact, that Sec. 120Adoes not require commission of an illegal act makes it a handy tool to prevent human trafficking, wherethe police are previously aware or informed of activities of persons who are conspiring to indulge inhuman trafficking. A mere agreement between such persons for indulging in any of the activities thatconstitute trafficking would suffice to make it a criminal conspiracy and hence, make such personsliable for prosecution under this Section. The provision stipulates for an agreement to do an illegal act,or an act that is not illegal, by illegal methods. A criminal conspiracy must involve at least two persons10.It is true that in most cases it will be difficult to get direct evidence of an agreement to conspire, but aconspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference ofan agreement between two or more persons to commit an offence11. The punishments for criminalconspiracy are provided u/s. 120B IPC.

F. Criminal Force/Assault (349-355)xx

Force used without consent to commit an offence or knowing that injury, fear or annoyance would belikely is criminal force as stipulated vide Sec. 350 IPC.

Although force may not be a component of trafficking, it is most likely that some kind of force would beused at some point in the process of trafficking. Where such force is used, it will amount to criminalforce as this force has been used to commit the offence of trafficking. An important element for thisprovision to apply is the lack of consent on the part of the person against whom force is applied.

Even if criminal force itself is not used, there may be assault which is a gesture or preparation which islikely to cause apprehensions of the use of criminal force. The offences of criminal force and assaultother than on grave provocation are punishable u/s. 352 IPC with imprisonment of either description,which may extend to three months, or with fine which may extend to five hundred rupees, or withboth.

10. State of U.P. v. Sukhbasi and others, 1985 Cri LJ 1479: 1985 AIR (SC) 122411. State (Delhi Admn.) v. V.C. Shukla and Another, 1980 Cri LJ 965: 1980 AIR (SC) 1382



The offence is non-cognizable, bailable, compoundable, and triable by anyMagistrate.

G. Cheating (415 - 419)xxi

Sec. 415 may be applied if any person fraudulently or dishonestlyxxii induces any person to perform anyact that causes harm to the mind, body, or reputation of the individual. It may be used where theperson trafficked is fraudulently lured or dishonestly taken away. U/S. 417, whoever cheats shall bepunished with imprisonment of either description for a term which may extend to one year, or withfine, or with both.

The offence is non-cognizable, bailable, compoundable (with the permission ofthe court before which any prosecution of such offence is pending) and triable byany Magistrate.

Cheating by personation happens when a person pretends to be someone s/he is not, in order to cheat.This may be the case in a lot of instances of trafficking. U/S. 419, whoever cheats by personation shallbe punished with imprisonment of either description for a term which may extend to three years, orwith fine, or with both.

The offence is cognizable, bailable, compoundable and triable by any Magistrate.

H. Criminal trespass (441)xxiii

This provision involves the unlawful entry into or upon property of another or in the possession ofanother, with the intention to commit any offence or to annoy/ insult/ intimidate such a person. It alsocovers those who lawfully enter, but unlawfully remain on the property. This provision can be usedwhen abduction or kidnapping is done from the property belonging to someone else including theparent or any other person lawfully in possession of the minor or the person who was abducted. Such atrespass would amount to criminal trespass and attract penal provisions under this Section. Other formsof criminal trespass such as house trespass (Sec. 442) may also be used. Whoever commits criminaltrespass can be punished U/S. 447 with imprisonment of either description for a term which mayextend to three months, or with fine which may extend to five hundred rupees, or with both.

The offence is cognizable, bailable, compoundable and triable by any Magistrate.

I. Criminal intimidation (503-509)xxiv

The ingredients of Sec. 503 involve threatening to cause harm either to person, property or reputationof the person who is threatened, or any other person in whom s/he is interested. Such threat may be forvarious purposes including for the commission of an offence, to kidnap, to abduct, or even to force theperson threatened into commercial sexual exploitation/ forced labour, transplantation of organs,etc.Whoever commits the offence of criminal intimidation can be punished U/S. 506 with imprisonmentof either description for a term which may extend to two years, or with fine, or with both. If the threatwas to cause death or grievous hurt or to cause the destruction of any property by fire, or to cause anoffence punishable with death or life imprisonment, or to impute unchastity to a woman, the punishmentis imprisonment up to seven years or fine or both.

The offence is non-cognizable, bailable, compoundable, and triable by any MagistrateIf threat be to cause death or grievous hurt, etc., in which case it is triable by aMagistrate of the First Class.

J. Rape & Sexual Intercourse not amounting to Rape (375-376)xxv

In the process of being trafficked, women and children are often raped. This is especially so whenwomen and children are trafficked for commercial sexual exploitation. Rape can occur at various pointsof the source, transit or destination areas. If a child below sixteen years of age is being commercially



sexually exploited, it amounts to statutory rape. If the trafficked woman has not consented to the actof sexual intercourse, or if her consent is vitiated by fear, threat, intimidation, intoxication, etc, itwould amount to the offence of rape.

K. Unnatural Offences (377)xxvi

This provision may be used when a person has carnal intercourse against the order of nature with anyman or woman. It may be especially applied where male children are sexually abused and forced intocommercial sexual exploitation or when they are sexually abused in other situations of trafficking andexploitation. For this section to apply penetration is sufficient to constitute intercourse. The offence ispunishable with imprisonment up to ten years or for life and also with fine.

The offence under this section is cognizable (but no arrest shall be made withouta warrant or without an order of a Magistrate), non-bailable, non-compoundableand triable by a Magistrate of the first class.

L. Hurt (319-338)xxvii

Many of the sections dealing with hurt can be used in cases of trafficking. The use of the appropriatesection will however, depend upon the degree of hurt. Hurt under IPC means causing bodily pain,disease or infirmity to any person. Most forms of violence against men, women and children who havebeen trafficked would come within the purview of these sections. Thus, acts of beating or torture todisfiguring, etc. are covered within its ambit. Aggravated forms of hurt such as grievous hurt carry morestringent punishments.

The offence of hurt is non-cognizable, bailable, compoundable and triable by anyMagistrate.

Whoever causes hurt shall be punished with imprisonment of either description for a term which mayextend to one year, or with fine which may extend to one thousand rupees, or with both U/S. 323. Incases of grievous hurt, imprisonment may extend to seven years and fine vide Sec. 325.

The offence of grievous hurt is cognizable, bailable, compoundable with thepermission of the court before which any prosecution of such offence is pendingand is triable by any Magistrate.

M. Causing Miscarriage (312-318)xxviii

The commercial sexual exploitation of young girls and women often leads to pregnancies, whereby theyare repeatedly forced to undergo abortions. Pregnancies may also occur as a consequence of sexualabuse on trafficked victims for forced labour. The Medical Termination of Pregnancy Act, 1971 allowswomen to undergo abortions under specified circumstances. However, Sections 312 - 318 IPC can be usedto punish traffickers/ exploiters along with the doctors (if any) who force women to miscarry. If deathhappens as a result, the punishment is higher.

Punishment for causing miscarriage is imprisonment up to seven years and fine U/S. 312. If the miscarriageis without the woman’s consent imprisonment could extend up to ten years U/S. 313. If death is causeddue to an act done with intent to cause miscarriage, imprisonment could extend up to ten years and ifsuch act was done without the consent of the woman, the offence is punishable either with imprisonmentfor life or for ten years U/S. 314.

The offence U/S. 312 is non-cognizable, bailable, non-compoundable and triableby Magistrate of the first class. The offences U/S. 313 and 314 are cognizable,non- bailable, non-compoundable and triable by a Court of Sessions.



N. Attempt to commit offences (511)xxix

This is one of the most important provisions that could be used effectively. In several cases especiallyrelating to offences like rape, abduction, kidnapping, unnatural offences and other offences against thehuman body, this provision plays a major role where evidence is insufficient to prove actual commissionof the offence. This Section applies not only to those who attempt to commit an offence but also tothose who cause such an offence to be committed. This Section applies only where no express provisionis made under the Code to punish attempts, and where the offence is punishable by imprisonment forlife or imprisonment. In such cases, punishment can be extended to half of the longest term ofimprisonment provided for that offence, or with the fine that is provided for that offence or with both.

The offence under this section is, according as the offence is cognizable or non-cognizable; according as the offence attempted is bailable or non-bailable, non-compoundable and triable by the court by which the offence attempted is triable.

It needs to be mentioned here that Sec. 5 of ITPA, 1956 penalizes even attempts to traffic human beingsfor sexual exploitation/ prostitution. Therefore, it would be advisable that in such situations ITPAprovisions are used along with IPC, as the case may be.

O. Slavery (370-371)xxx

Cases where the person is trafficked and kept against his or her will and not paid remuneration for workdone, or forced to do unsuitable work might constitute slavery which is punishable by up to seven yearsimprisonment or even ten years in the case of habitual dealing in slaves.

2.2.3 The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,1989

A. Punishment for Offences of Atrocities (3)xxxi

Many victims of trafficking belong to marginalised groups. Traffickers target such areas, as they arevulnerable socially and economically. This legislation provides an additional tool to safeguard womenand young girls belonging to Scheduled Castes and Scheduled Tribes and also to create a greater burdenon the trafficker/ offender to prove his lack of complicity in the matter.

This Act can be effectively used to counter the offence of trafficking of Scheduled Castes and Tribes ifthe offender has the knowledge about the victim’s status as belonging to these communities. Sec. 3primarily deals with atrocities committed against people belonging to the Scheduled Castes or ScheduledTribes. It specifically covers certain forms of trafficking such as forced or bonded labour (clause vi) andsexual exploitation of women (clause xi, xii). A minimum punishment of six months is provided whichcould extend up to five years in any offence covered Sec. 3.

2.2.4 The Juvenile Justice (Care and Protection of Children) Act, 2000

This Act in Section 2xxxii specifically defines several terms, and it is important to keep in mind thesedefinitions while interpreting the substantive provisions of the JJA. Under the Act, there is no differencebetween a minor and a child. All persons under the age of eighteen years are considered children.

A trafficked child is considered a ‘child in need of care and protection’ vide Sec. 2 (d) of the JJA and thecase of Prerana v. State of Maharashtra12.

All children who are deemed in need of care and protection under this Act must be produced before theChild Welfare Committee (CWC) constituted under this Act. Chapter Three of the Act deals with children

12. See also Prerana v State of Maharashtra, (2003)2 BOMLR562, 2003(2) MLJ 105 Cri. W.P. No. 788 of 2002 Decided On:07.10.2002



in need of care and protectionxxxiii. It is important for the law enforcement agencies to note that suchchildren must neither be treated as accused nor be arrested and that they must be produced before theCWC.

A. Punishment for cruelty to juvenile or child (Sec. 23, 27)xxxiv

Sec. 23 applies to any person who has actual charge or control over a juvenile or a child; it could be theparent or the guardian. The offences under this section involve assault, abandonment, exposure orwilful neglect on the part of such a person or causing any of these to be done by another as a result ofwhich the victim suffers unnecessary mental or physical suffering. The offender shallbe punishable withimprisonment for a term which may extend to six months, or fine, or with both. The offences under thisSection are cognizable vide Sec. 27.xxxv

B. Employing the juvenile or child for begging (Sec. 24)xxxvi

Children are often trafficked for purposes of involving them in begging. Under the JJA employment ofa juvenile or child for begging is covered by Sec. 24. The offences under this Section are cognizable asstated in Sec. 27.xxxvii

C. Penalty for giving intoxicating drug or psychotropic substance to juvenile or child (Sec. 25)xxxviii

This Section applies to any person who gives, or causes to be given, to any juvenile or child anyintoxicating liquor (in a public place) or any narcotic drug or psychotropic substance. This provision canbe used to tackle trafficking of drugs and giving them to children. As the Section only requires ‘giving’of such substances and not administering them or selling them, its ambit covers the use of children fordrug trafficking or liquor smuggling also. An offender under this Section shall be punishable withimprisonment for a term which may extend to three years and shall also be liable to fine. The offencesunder this provision are cognizable vide Sec. 27.

D. Exploitation of juvenile or child employee (Sec. 26)xxxix

This Section requires that no person must procure a juvenile or child by any means for the purpose ofany hazardous employment. This provision can be used against people who traffic children for thepurpose of labour and against those who employ such trafficked children. It also applies if the juvenileor child is kept in bondage or if his earnings are withheld or used by the employer for his own benefit.The offence shall be punishable with imprisonment for a term which may extend to three years andshall also be liable to fine. An offence under this Section is cognizable as stated in Sec. 27xl.

E. Alternative punishment (28)xli

If an offence under this Act attracts greater punishment under any other law in force, it is that law thatshall prevail.

2.3 Organized Crimes and Trafficking in Human Beings

Trafficking is a crime that involves a number of traffickers, such as the procurer, the transporter, thebuyer, and the abuser, etc. These persons generally operate as a network and repeatedly engage intrafficking. This is the reason why the crime of trafficking often constitutes an organized crime and iscarried out by an organized group. Thus, it is imperative to perceive trafficking as an organised crimeand how it may be tackled in order to ultimately prevent trafficking.

‘Organized crime’ is defined in Section 2(e) of the Maharashtra Control of Organised Crime Act 1999(MCOCA): “Any continuing unlawful activity13 by an individual singly or jointly, either as a member of

13. Section 2(d) ‘continuing unlawful activity’ means an activity prohibited by law for the time being in force, which is acognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as amember of an organized crime syndicate or on behalf of such syndicate, in respect of which more than one charge-sheethas been filed before a competent Court within the preceding period of ten years, and that Court has taken cognizanceof such offence.



an organized crime syndicate or on behalf of such syndicate, by use of violence or threat of violence orintimidation or coercion or other unlawful means, with the objective of gaining pecuniary benefits, orgaining undue economic or other advantage for himself or any other person or promoting insurgency”.This definition is very broad and includes all illegal activity by an organized syndicate. The Act can befound in Annexure I to this Chapter.

In India at present, we have no specific central legislation that deals with organized crime. The earlierlaws dealing with organized crimes were the POTA14 and TADA15, which were repealed and are therefore,no longer applicable.

There are other provisions in law that can be invoked to deal with organised crime, which fall under theIndian Penal Code and the Prevention of Corruption Act 1988.

2.3.1 The Indian Penal Code, 1860

There are three main provisions under the IPC that can be used in dealing with offences committed byan organized gang.

Sl. No. Indian Penal Code, 1860 Section

A Common Intention to commit an offence 34

B Criminal Conspiracy 120A-120B

C Abetment 107-120

These have been discussed in the preceding sub chapter 2.2.2

2.3.2 Prevention of Corruption Act, 1988

IntroductionWhile the link between trafficking and the Prevention of Corruption Act is not easily discernible indealing with trafficking as an organized crime, the Act becomes an invaluable tool.

Corruption occurs when an individual abuses his authority for personal gain at the expense of otherpeople. The most common type of corruption is when a public official takes advantage of his position/authority or supervision to make private profits directly or indirectly, or takes advantage of his authorityto make money.

According to the Act, the term‘Public Servant’ is used for a person who is in the service of the Government,a local authority or a corporation, under a Central, Provincial, or State Act, or an authority or a bodyowned, controlled, or aided by the Government or a Government company etc, who is paid or remuneratedby fees for performance of a public dutyxlii. Thus, this definition would include persons such as bordersecurity force personnel, police, superintendents of homes, etc.

Any public servant who abuses/ misuses his power and authority to aid or abet trafficking could thus beprosecuted under this Act.

The operative sections of the Act are discussed briefly below. The full text of the sections can be foundin the endnotes.

14. Prevention of Terrorism Act, 200215. Terrorist and Disruptive Activities (Prevention) Act, 1987



Broad Overview

Sl. No. Prevention of Corruption Act, 1988 Section

A Public servant taking gratification other than legal

remuneration in respect of an official act 7

B Taking gratification in order, by corrupt or illegal means, to

influence public servant 8

C Taking gratification, for exercise of personal influence

with public servant 9

D Punishment for abetment of offences u/s. 8 or 9 10

E Public servant obtaining valuable thing, without consideration

from person concerned in proceeding or business transacted

by such public servant 11

F Abetment of offences u/ s. 7 or 11 12

G Criminal misconduct by a public servant 13

A. Public servant taking gratification other than legal remuneration in respect of an official act (Sec.7)xliii

Whoever being or expecting to be a public servant, accepts or obtains or agrees to accept or attempts toobtain from any person any gratification other than his regular legal remuneration, to act or attempt toact, omits or attempts to omit an official act in the exercise of his official functions, favours or disfavoursany person will be punished with imprisonment of not less than six months which may extend to fiveyears and will also be liable to pay fine.

B. Taking gratification in order, by corrupt or illegal means, to influence a public servant (Sec. 8)xliv

Any person who accepts or attempts to accept gratification for himself or for any other person, as areward, by illegal means, for himself or for a public servant to do or forbid from doing an act in anofficial capacity of such pubic servant, by showing any favour, disfavour, offering or attempting to offerservices to any person with the Central or State Government, Parliament, Legislature of any State, orlocal authority, will be punished for a term not less than six months but which may extend to five yearsand shall also be liable to fine.

C. Taking gratification for exercise of personal influence with public servant (Sec. 9)xlv

Any person who accepts or agrees to accept for himself or for any other person any gratification by theexercise of his personal influence on any public servant, to do or forbid from doing any act in the officialcapacity of such public servant by showing favour or disfavour, attempting to render services or disserviceto any person with the Central, State Government or Parliament or legislature of any State, local authority,corporation or any government company, will be punished with imprisonment for a term not less thansix months which may extend to five years and shall also be liable to fine.

D. Punishment for abetment by a public servant of offences defined in Section 8 or 9 (Sec. 10)xlvi

Any public servant who, in his official capacity, accepts gratification beyond his legal remuneration orabets the commission of such offence, whether that offence is committed or not, will be punished for aterm not less than six months and may extend to five years and shall also be liable to fine.

E. Public servant obtaining valuable thing without consideration from person concerned in proceedingor business transacted by such public servant (Sec. 11)xlvii

Any person who obtains valuable thing for no consideration, as regards any transaction or any proceedingwhich is likely to influence a public servant, will be punishable for a term not less than six monthswhich may extend to five years and shall also be liable to fine.



F. Punishment for abetment of offences in Sections 7 or 11 (Sec. 12)xlviii

Any person who abets the taking of gratification other than legal remuneration or the obtaining of avaluable thing without consideration from person concerned in proceeding or business transacted by apublic servant, whether or not that offence is committed in consequence of that abetment, is liable toimprisonment from six months to five years and is also liable to fine.

G. Criminal misconduct by a public servant (Sec. 13)xlix

A criminal misconduct is said to have been committed by a public servant if he is habituated in accepting,obtaining, or agrees to obtain from any person, for himself or for any person, any gratification otherthan his legal remuneration. A public servant found guilty of criminal misconduct is punishable withimprisonment ranging from not less than one year up to seven years and will also be liable to be fined.

2.4. Provisions for Inter-Country Trafficking

Trafficking across borders is a serious problem that has received much international attention. Victimswho are foreigners in the land they are trafficked to find themselves helpless. There is an increasingawareness among law enforcement agencies that irrespective of the nationality, human trafficking is ahuman rights violation and must be prevented and victims protected.

The main problems that arise in case of cross-border trafficking are those of jurisdiction and that manyoffenders are outside the domain of domestic law. However, there are some international law provisionswhich can be made use of. In the Indian scenario, trafficking across borders, particularly from Nepal andBangladesh, does happen. Domestic law does have a few provisions to combat such trafficking.

Trafficking is not restricted to borders or boundaries of a nation and a great deal of trafficking may infact be inter-country. The status of the person trafficked does not change and he/she remains a victim.These provisions seek to address the issues that are related to inter-country trafficking. This part dealswith provisions of the Indian Penal Code, 1860 (2.4.1), The Citizenship Act, 1955 (2.4.2), The ForeignersAct, 1946 (2.4.3), The Immigration Carriers (Liability) Act, 2000 (2.1.4), and the Passports Act, 1920(2.4.5). The provisions mainly regulate the entry and stay of foreigners in India and offences that arecommitted when people are trafficked across borders.


Kidnapping from India (360, 363)1

This Section applies irrespective of the person’s age. The prerequisites are the conveyance of the kidnappedperson beyond the borders of India, coupled with the lack of consent. It is important to note here thatconsent has to be given to move the person in question beyond the limits of India. The offence ispunishable U/S. 363 of the IPC, with imprisonment of any description that could extend up to sevenyears coupled with a fine.

The offence is cognizable, bailable, non-compoundable and triable by a Magistrateof the first class.

Importation of girl from foreign country (366B)1i

This Section can be used effectively to combat cross-border trafficking of women and girls up to twentyone years of age from any country into India. The offence is punishable with imprisonment, which mayextend to ten years, and shall also be liable to fine.

The offence is cognizable, non-bailable, non-compoundable, and triable by a Courtof Sessions.



2.4.2 Citizenship Act, 1955

This Act may be invoked to revoke citizenship of those convicted of offences involving imprisonmentover two years, provided such person is a naturalized citizen of India and is convicted of an offence oftrafficking within a period of five years after naturalization1ii. A naturalised citizen is one who hasacquired citizenship after application to the Central Government i.e. not one who is a citizen by birth.The conviction could be in any country and not necessarily in India. Various traffickers who involvethemselves in cross-border trafficking may be brought under the purview of this legislation, if they fitthe criteria of naturalized citizens of India. The Central Government is the authority empowered to takeaway citizenship under this Act after giving the concerned person a reasonable opportunity to be heard.

The police may also petition the Central Government to revoke citizenship in cases of traffickers whohave been found guilty as the Central Government has the sole prerogative to revoke citizenship.

2.4.3 The Foreigners Act, 19461iii

This Act empowers the Central Government to make provisions relating to any foreigner, or all foreigners,or any group thereof U/S. 3 of the Act. Such provisions may relate to regulating entry, exit or behaviourin India. They may prescribe that foreigners shall not enter India, or shall enter India only at such timesand by such route and at such port or place and subject to the observance of such conditions on arrivalas may be prescribed.

These provisions can be used to counter cross border trafficking by irregular entry and trafficking ofpeople into India. If any person contravenes the provisions of this Act or of any order or any directiongiven in pursuance of this Act, he shall be punished with imprisonment for a term that may extend tofive years and shall also be liable for fine U/S. 14 of the Act. An attempt to contravene is also similarlypunishable U/S. 13.

2.4.4 Immigration (Carrier’s Liability) Act, 2000

This Act can be used to prosecute those who indulge in the illegal transport of human beings from othercountries. This Act applies only to carriers by air or by sea. Where the provisions of the Passport Act orany rules made thereunder are contravened in bringing persons from other countries into India,thecarrier may be punished by the competent authority under the Passport Act, by order imposing apenalty of rupees one lakh on such carrier1iv.

For the purposes of this Act, ‘carrier’ means a person who is engaged in the business of transportingpassengers by water or air and includes any association of persons, whether incorporated or not, bywhom the aircraft or the ship is owned or chartered1v.

2.4.5 Indian Passport (Entry into India) Act, 1920

The Central Government, under this Act, may make rules1vi requiring that persons entering India shall bein possession of passports. It may prohibit the entry into India or any part thereof of any person whodoes not have in his possession a passport issued to him.

This law can be used to counter inter-country trafficking. A trafficker who enters India without suchdocuments as prescribed or those who do not follow the rules laid down under this Act can be punished.The offender is punishable with imprisonment for a term that may extend to three months, or with fine,or with both. Any police officer, not below the rank of a sub-inspector, and any officer of the CustomsDepartment empowered by a general or special order of the Central Government in this behalf mayarrest, without warrant, any person who has contravened or against whom a reasonable suspicion exists



that he has contravened any rule or order made U/S. 3. The arresting officer should, without unnecessarydelay, take or send the person arrested before a Magistrate having jurisdiction in the case or to theofficer in charge of the nearest police station1vii. Departure from India is dealt with in the Passport Act,1967 which prescribes that persons leaving India must have valid travel documents.1viii

While making use of this law, care must be taken to avoid revictimisation of victims of trafficking whomay be in India without appropriate documents. Action must be taken for their protection. Care mustalso be taken to ensure that families are not separated and that human rights of all persons, particularlywomen and children, are protected.



ANNEXURE 1

Maharashtra Control of Organised Crime Act, 1999(Maharashtra Act No. 30 - of 1999)

To make special provisions for prevention and control of, and for coping with, criminal activity by organized crimesyndicate or gang, and for matters connected there will or incidental thereto.

WHEREAS it was expedient to make special provisions for prevention and control of, and for coping with, criminalactivity by organized crime syndicate or gang and for matters connected therewith or incidental thereto;

AND WHEREAS, the Governor of Maharashtra was satisfied that Circumstances existed which rendered if necessary forhim to take immediate action to make law, for the purposes aforesaid.

It is hereby enacted in the Fiftieth Year of the Republic of India as follows :1. Short title, extend and commencement-

(1) This Act may he called the Maharashtra Control of Organised Crime Act, 1999.(2) It extends to the whole of the State of Maharashtra.(3) It shall be deemed to have come into force on the 24th February 1999.

2. Definitions-(1) In this Act, unless the context otherwise requires,-

(a) “abet”, with its grammatical variations and congnate expressions, includes,-(i) the communication or association with any person with the actual knowledge or having reasonto believe that such person is engaged in assisting in any manner, an organised crime syndicate;(ii) the passing on or publication of, without any lawful authority, any information likely lo assistthe organised crime syndicate and the passing on or publication of or distribution of any documentor matter obtained from the organised crime syndicate; and (iii) the rendering of any assistance,whether financial or otherwise, to the organised crime Syndicate;

(b) “code” means the Code of Criminal Procedure, 1973;(c) “Competent Authority” means the Competent Authority appointed under section 13;(d) “continuing unlawful activity” means an activity prohibited by law for the time being in force, which

is a cognizable offence punishable with imprisonment of three years or more, undertaken eithersingly or jointly, as a member of an organised crime syndicate or on behalf of such, syndicate inrespect of which more than one charge-sheets have been field before a competent Court within thepreceding period of ten years and that Court has taken cognizance of such offence;

(e) “organised crime” means any continuing unlawful activity by an individual, singly or jointly, eitheras a member of an organised crime syndicate or on behalf of such syndicate, by use of violence orthreat of violence or intimidation or coercion, or other unlawful means, with the objective of gainingpecuniary benefits, or gaining undue economic or other advantage for himself or any person orpromoting insurgency;

(f) “organised crime syndicate” means a group of two or more persons who, acting either singly orcollectively, as a syndicate of gang indulge in activities of organised crime;

(g) “Special Court” means the Special Court constituted under section 5.(2) Words and expressions used but not defined in this Act and defined in the Code shall have the meanings

respectively assigned to them in the Code shall have the meanings respectively assigned to them in thecode.

3. Punishment for organised crime-(1) Whoever commits an offence of organised crime shall,

(i) if such offence has resulted in the death of any person, be punishable with death or imprisonmentfor life and shall also be liable to a fine, subject to a minimum fine of rupees one lac;

(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five yearsbut which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimumfine of rupees five lacs.

(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission ofan organised crime or any act preparatory to organised crime, shall be punishable with imprisonment fora term which shall be not less than five years but which may extend to imprisonment for life, and shallalso be liable to a fine, subject to a minimum of rupees five lacs.

(3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an organised crimesyndicate; shall be punishable, With imprisonment for a term which shall not be less than five years butwhich may extend to imprisonment for life and shall also be liable to a, fine, subject to a minimum fine ofrupees five lacs.



(4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment fora term which shall not be less, than five years but which may extend to imprisonment for life and shallalso be liable to a fine, subject to a minimum fine of rupees five lacs.

(5) Whoever holds any property derived of obtained from commission of an organised crime or which has beenacquired through the organised crime syndicate funds shall be punishable with a term which, shall not beless than three years but which may extend to imprisonment for life and shall also be liable to fine,subject to a minimum fine of rupees two lacs.

4. Punishment for possessing unaccountable wealth on behalf of member of organised crime syndicate.If any person on behalf of a member of an organised crime syndicate is, or, at any time bus been, in possession ofmovable or immovable property which he cannot satisfactorily account for, he shall be punishable with imprisonmentfor a term which shall not be less than three years but which may extend to ten years and shall also be liable tofine, subject to a minimum fine of rupees one lac and such property shall also liable for attachment and forfeiture,as provided by section 20.

5. Special Courts(1) The State Government may, by notification in the Official Gazette, constitute one or more Special Courts

for such area or areas, or for such case or class or group of cases, as may be specified in the notification.(2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the State

Government whose decision shall be final.(3) A Special Court shall be presided over by a judge to be appointed by the State Government, with the

concurrence of the Chief Justice of the Bombay High Court. The State Government may also appoint, withthe concurrence of the Chief Justice of the Bombay High Court, additional judges to exercise jurisdictionin a Special Court-

(4) A person shall not be qualified for appointment as a judge or an additional judge of a Special Court, unlesshe immediately before such a appointment, is a sessions judge or an additional sessions judge.

(5) Where any additional judge is or additional judges are appointed in a Special Court, the judge of theSpecial Court may, from time to time, by general or special order in writing, provide for the distribution ofthe business of the Special Court among himself and the additional judge or additional judges and also forthe disposal of urgent business in the event of his absence or the absence of any additional judges.

6. Jurisdiction of Special CourtNotwithstanding anything contained in the Code, every offence. punishable under this Act shall, be triable onlyby the Special Court within whose local jurisdiction it was committed or at the case may be, by the Special Courtconstituted for trying such offence under subsection (1) of section 5.

7. Power of Special Court with respect to other offences.(1) When trying any offence punishable under this Act, a Special Court may also try any other offence with

which the accused may, under the Code, be charged at the same trial, if the offence is connected withsuch other offence.

(2) If, in the course of any trial of any offence under this Act, it is found that the accused person hascommitted any other offence under this Act or under any other law, the Special Court may, convict, suchperson of such other offence and may pass any sentence authorised by this Act or, as the case may be,such other law for the punishment thereof.

8. Public Prosecutor.(1) For every Special Court, the State Government shall appoint a person to be the Public Prosecutor and may

appoint one or more persons to be the Additional Public Prosecutor or Additional Public Prosecutors:Provided that, the State Government may also appoint for any case or group of cases, a Special PublicProsecutor

(2) A Person shall not be qualified to be appointed as a Public Prosecutor, an Additional Public Prosecutor ora Special Public Prosecutor unless he has been in practice as an Advocate for not less than ten years.

(3) Every person appointed as a Public Prosecutor or Additional Public Prosecutor or Special Public Prosecutor,under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section2 of the Code, and the provisions of the Code shall have effect accordingly.

9. Procedure and powers of Special Court(1) A Special Court may take cognizance of any offence without the accused being committed to it for trial,

upon receiving a complaint of facts which constitute such offence or upon a police report of such facts.(2) Where an offence triable by a Special Court is punishable with imprisonment for a term not exceeding

three years or with fine or with both, the Special Court may, notwithstanding anything contained in sub-section (1) of section 260 or section 262 of the Code, try the offence in a summary way in accordance withthe procedure prescribed in the Code and the provisions of section 263 to 265 of the Code shall, as far asmay be, apply to such trial:Provided that, where-in the course of a summary trial under this sub-section, it appears to the SpecialCourt that the nature of the case is such that it is undesirable to try in a summary way, the Special Courtshall recall any-witnesses who may have been examined and proceed to re-hear the case in the manner



provided by the provisions of the Code for the trial of such offence and the said provisions shall apply toand in relation, to a Special Court as they apply to and relation, to a Magistrate:Provided further that, in case of any conviction in a summary trial under this section, it shall be lawful fora Special Court to pass a sentence of imprisonment for a term not exceeding two years.

(3) A Special Court may, with a view to obtaining the evidence of any person, supposed to have been directlyor indirectly concerned in or privy to an offence, tender a pardon to such person on condition of hismaking a full and true disclosure of the whole circumstances within his knowledge relative to the offenceand to every other person concerned, whether as principal or abetter, in the commission thereof, and anypardon so tendered shall, for the purposes of section 308 of the Code, be deemed to have been tenderedunder section 307 thereof.

(4) Subject to other provisions of this Act, a Special Court shall; for the purpose of trial of any offence, haveall the powers of a Court of Session and shall try such offence as if it were a Court of session, so far as maybe, in accordance with the procedure prescribed in the Code for the trial before a Court of Session.

10. Trial by Special Courts to have precedence.The trial of any offence under this Act by a Special Court shall have precedence over the trial of any other caseagainst the accused in any other Court (not being a Special Court) and shall be concluded in preference of thetrial of such other case and accordingly the trial of such other cases shall remain in abeyance.

11. Power to transfer cases to regular Courts.Where, after taking cognizance of an offence, a Special Court is of the opinion that the offence is not triable byit, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of suchoffence to any Court having jurisdiction under the Code and the Court to which the case is transferred mayproceed with the trial of the offence as if it had taken cognizance of the offence.

12. Appeal.(1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgement, sentence or

order, not being an interlocutory order, of a Special Court to the High Court.(2) Every appeal under this section shall be preferred within thirty days from the date of the judgement,

sentence or order.

13. Appointment of Competent Authority.The State Government may appoint any of its officer, in Home Department not below the rank of Secretary toGovernment, to be the Competent Authority for the purposes of section 14.

14. Authorization of interception of wire, electronic or oral communication.(1) A Police officer not below the rank of Superintendent of Police Supervising the investigation of an organised

crime under this Act may submit an application in writing to the Competent Authority for an orderauthorising or approving the interception of wire, electronic or oral communication by the investigatingofficer when such interception may provide or has provided evidence of any offence involving an organisedcrime.

(2) Each application shall include the following information :(a) the indentity of the investigative or law enforcement officer making the application, and the head of

the department authorising the application :(b) a statement of the facts and circumstance, relied upon by the applicant, to justify his belief that an

order should be issued, including-.(i) details as to the offence of organised crime that has been, is being, or is about to be committed;(ii) a particular description of the nature and location of the facilities from which or the place where

the communication is to be intercepted;(iii) a particular description of the type of communications sought to be intercepted; and(iv) the identity of the person, if known, committing the offence of organised crime whose

communications are to be intercepted;(c) a statement as to whether or not other modes of enquiry or intelligence gathering have been tried

and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous oris likely to expose the identity of those connected with the operation of interception;

(d) a statement of the period of time for which the interception is required to be maintained. If, thenature of the enquiry is such that the authorization for interception should not automatically terminatewhen the described type of communication has been first obtained, a particular description of factsestablishing probable cause to be believe that additional communications of the same type will occurthereafter;

(e) a statement of the facts concerning all previous applications known to the individual authorizingand making the application, made to the Competent Authority for authorization to intercept; or forapproval of interceptions of, wire electronic or oral communications involving any of the same persons,facilities or places specified in the application and the action taken by the Competent Authority oneach such application; and

(f) where the application is for the extension of an order, a statement setting forth the results thus farobtained from the interception, or a reasonable explanation of the failure to obtain such results.



(3) The Competent Authority may require the applicant to furnish additional oral or documentary evidence insupport of the application.

(4) Upon such application, the Competent Authority may after recording the reasons in writing reject theapplication, or issue an order, as requested or as modified, authorising or approving interception of wire,electronic or oral communications, if the Competent Authority, on the basis of the facts submitted by theapplicant that-(a) there is a probable cause for belief that an individual is committing, has committed, or is about to

commit a particular offence described and made punishable under section 3 and 4 of this Act;(b) there is a probable cause for belief that particular communications concerning that offence will be

obtained through such interception;(c) normal modes of enquiry and, intelligence gathering have been tried and have failed, or reasonably

appear to be unlikely to succeed if tried or to be too dangerous or is likely to expose the identity ofthose connected with the operation of interception;

(d) there is probable cause for belief that the facilities from which, or the place where, the wire, electronicor oral communications are to be intercepted or be used or are about to be used, in, connection withthe commission of such offence, leased to, or are listed in the name of or commonly used by suchperson.

(5) Each order by the Competent Authority authorizing or approving the interception of any wire, electronicor oral communication under this section shall specify-(a) the identity of the person, if know, whose communications are to be intercepted;(b) the nature, and location of the communication facilities as to which, or the place where, authority to

intercept is granted;(c) a particular description of the type of communication sought to be intercepted, and a statement of

the particular offence to which it relates;(d) the identity of the agency authorized, to intercept, the communications, and of the person authorizing

the application; and(e) the period of time during which such interception is authorized, including a statement as to whether

or not the interception ;shall automatically terminate when the described communication has beenfirst obtained.

(6) The Competent Authority shall immediately passing the order under sub-section (4), but in any case notlater than seven days from the passing of the order, submit a copy of the same to the Review Committeeconstituted under section 15 alongwith all the relevant underlying papers; record and his own, findings,etc; in respect of the said order, for consideration and approval of the order by the Review Committee

(7) An order authorizing the interception of a wire, electronic or oral communication under this section shall,upon request of the applicant, direct that a provider of wire or electronic communication service, landlord,custodian or other person shall furnish to the applicant fortwith all information, facilities, and technicalassistance necessary to accomplish the interception unobtrusively and with a minimum of interferencewith the services that such service provider, landlord, custodian, or person is providing to the personwhose communications are intercepted.

(8) An order issued under this section may authorize or approve the interception of any wire, electronic ororal communication for any period longer than is necessary to achieve the objective of the authorization,nor in any event longer than sixty days. Such sixty days period shall begin-on the day immediatelypreceding the day on which the investigative or law enforcement officer first begins to conduct aninterception under the order or ten days after the order is issued, whichever is earlier. Extension of anorder may be granted, but only upon an application for an extension is made in accordance with subsection(1) and the Competent Authority making the findings required by sub-section (4). The period of extensionshall be no longer than the Competent Authority-deems necessary to achieve the purposes for which it,was granted and in no event for longer than sixty days at a time. Every order and extension, thereof shallcontain a provision that the authorization to intercept any event shall be executed as soon as practicableand shall be conducted in such a way or manner as to minimize the interception of communications nototherwise subject to interception under this section and must terminate upon attainment of the authorized,objective, or in any event on expiry of the period of the order. In the event the intercepted communicationis in a code or foreign language, and an expert in that foreign language-or code is nor reasonably availableduring the interception period, minimization may be accomplished as soon as practicable after suchinterception. An interception under this section may be conducted in whole or in part by public servant,or by an individual operating under a contract with the State Government, acting under the supervision ofthe investigative or law enforcement officer authorized to conduct the interception.

(9) Whenever an order authorizing interception is issued pursuant to this section, the order may requirereports to be made to the Competent Authority who issued the order showing that progress has been madetowards achievement of the authorized objective and the need for continued interception. Such reportsshall be made at such intervals as the Competent Authority may require.

(10) Notwithstanding anything contained in any other provision of this section, an Officer not below the rankof Additional Director General of Police who reasonably determines that-(a) an emergency situation exists that involves.

(i) immediate danger of death or serious physical injury to any person;(ii) conspiratorial activities threatening the security or interest of the State; or(iii) conspiratorial activities, characteristic of organized crime, that requires a wire, electronic or oral



communication to be intercepted before an order from the Competent Authority authorizing suchinterception can, with due deligence, be obtained, and

(b) there are grounds upon which an order could be issued under this section to authorize such interception,may authorise, in writing, the investigating Police Officer to intercept such wire, electronic or oralcommunication, if an application for an order, approving the interception is made in accordance withthe provisions. Of sub-sections (1) and (2) within forty-eight hours after the interception has occurred,or begins to occur.

(11) In the absence of an order approving the interception made under sub-section (10), such interceptionshall immediately terminate when the communication sought is obtained or when the application for theorder is rejected, whichever is earlier. In the event where an application for permitting interception isrejected under sub-section (4) or an application under sub-section (10) for approval is rejected, or in anyother case where the interception is terminated without an order having been issued, the contents of anywire, electronic or oral communication intercepted shall be treated as having been obtained in violationof this section.

(12) (a) The contents of any wire, electronic or oral communication intercepted by any means authorized by thissection shall, if possible, be recorded on tape or wire or other comparable devise. Recording of the contentsof any wire, electronic or oral communication under this sub-section shall be done in such a way as willprotect the recording from editing or other alterations. Immediately upon the expiration of the period oforder, or extension thereof, such recordings shall be made available to the Competent Authority issuingsuch order and shall be scaled under this directions. Custody of the recordings shall be wherever theCompetent Authority orders. They shall not be destroyed except upon an order of the Competent Authorityand in any event shall be kept for ten years.

(b) Applications made and orders issued under this section shall be sealed by the Competent Authority.Custody of the applications and orders shall be wherever the Competent Authority directs, and shall notbe destroyed except on an order of the Competent Authority, and in any event shall be kept for ten years.The Competent Authority upon the filing of a motion, may in his discretion make available to such personor his counsel for inspection such portions of the intercepted communications, applications and orders asthe Competent Authority determines to be in the interest of justice.

(13) Notwithstanding anything in the Code or in any other law for the time being in force, the evidencecollected through the interception of wire, electronic or oral communication under this section shall beadmissible as evidence against the accused in the Court during the trial of a case.Provided that, the contents of any wire, electronic or oral communication intercepted pursuant to thissection or evidence derived there from shall not be received in evidence or otherwise disclosed in anytrial, hearing or other proceeding in any court unless each party, not less than ten days before trial,hearing or proceeding, has been furnished with a copy of the order of the Competent Authority, andaccompanying application, under which the interception was authorised or approved :Provided further that, this ten days period may be waived by the judge, trying the matter, if he finds thatit was not possible to furnish the party with the above information ten days before the trial, hearing orproceeding and that the party will not be prejudiced by the delay in receiving such information.

Explanation.—For the purposes of this section—(a) ‘write communication” means any aural transfer made in whole

or part through the use of facilities for the transmission of communications by the aid of wire, cableor other like connection between (he point of origin and the point of connection, between the pointof origin and (he point of reception (including the use of such connection in switching station) andsuch term includes any electronic storage of such communication;

(b) ‘oral communication’ means any oral communication uttered by a person exhibiting an expectationthat such communication is not subject to interception under circumstances justifying such expectationbut such terms does not include any electronic communication;

(c) “electronic communication’ means any transfer of signs, ‘signals,’ writings, images, sounds, data orintelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo optical system that affects inland or foreign commerce but does not include—

(i) The radio portion of a cordless telephone communication-that is transmitted between the wirelesstelephone hand-set and the base unit;

(ii) any wire or oral communication;(iii) any communication made through a tone only paging device; or(iv) any communication from a tracking device;

(d) ‘intercept’ means the aural or other acquisition of the contents by wire, electronic or oral communicationthrough the use of any electronic, mechanical or other device.

15. Constitution of Review Committee for review of authorisation orders.(1) There shall be a Review Committee to review every order passed by the Competent Authority under section

14.(2) The Review Committee shall consist of the following ex officio members namely ;

(i) the Chief Secretary to Government, Chairman.(ii) the additional Chief Secretary or the senior most Principal Secretary as the case may be, in the Home

Department…Member.



(iii) Principal Secretary or Secretary and Remembrancer of Legal Affairs, Law and JudiciaryDepartment…Member.

(3) Every order passed by the Competent Authority under section 14. placed before the Review Committee,shall be considered by the Review Committee within ten days after its receipt, to decide whether theorder, authorising or approving the application under subsection (4) of section 14, for interception ordisapproving the interception made under sub-section (10) of that section in emergency situation, passedby the Competent Authority was necessary, reasonable and justified.

(4) The Review Committee, after examining the entire record and holding such enquiry, if any, deemed necessarymay, by order in writing. either approve the order passed by the Competent Authority or may issue orderdisapproving by the same. On issue of an order of disapproval by the Review Committee, the interception,if any, already commenced shall be fortwith discontinued. The intercepted communication, if any, in theform of tape, wire or other device shall, thereupon, not be admissible as evidence in any case and shall bedirected to be destroyed.

16. Interception and disclosure of wire, electronic or oral communications prohibited.Except as otherwise specifically provided in section 14, any police officer who—

(a) intentionally intercepts, endeavours to intercept, or procures any other person to intercept or endeavourto intercept any wire, electronic or oral communication;

(b) intentionally uses; endeavours to use, Or procures any other person to use or endeavours to use anyelectronic, mechanical or other device to intercept any oral communication when-(i) such device is affixed to, or otherwise transmits a signal through a wire, cable, or other like connection

used in wire communication; or(ii) such device transmits communications by radio, or interferes with the transmission of such

communication;(c) intentionally discloses, or endeavours to disclose, to any other person the contents of any wire, electronic

or oral communication, knowing or having reason to know that the information was obtained through theinterception of a wire, electronic or oral communication in violation of this sub-section;

(d) intentionally uses, or endeavours to use, the contents of any wire, electronic or oral communication,knowing or having reason to know that the information was obtained through the interception of a wire,electronic or oral communication in violation of this subsection; or

(e) (i) intentionally discloses, or endeavours to disclose, to any other person the contents of any wire, electronicor oral communication, intercepted by means authorized by section 14;

(ii) knowing or having reason to know that the information was obtained through the interception of such acommunication in connection with a criminal investigation under this Act;

(iii) having obtained or received the information in connection with a criminal investigation; and(iv) with intent to improperly obstruct, impede, or interfere with a duly authorised criminal investigation; or(f) intentionally continues the interception of wire, electronic or oral communication after the issue of an

order of disapproval by the Review Committee under sub-section (4) of section 15, shall for such violationbe punishable with imprisonment for a term which may extend to one year and with fine upto rupees fiftythousand.

17. Special Rules of evidence.(1) Notwithstanding anything to the contrary contained in the Code, or the Indian Evidence Act, 1872, for

the purpose of trial and punishment for offences under this Act or connected offences, the Court may takeinto consideration as having probative value, the fact that the accused was,—(a) on any previous occasion bound under section 107 or section 110 of the Code;(b) detained under any law relating to preventive detention; or(c) on any previous occasion was prosecuted in the Special Court under this Act.

(2) Where it is proved that any person involved in an organised crime or any person on his behalf is or has atany time been in possession of movable or immovable property which he cannot satisfactorily account for,the Special Court shall, unless contrary is proved, presume that such property or pecuniary resources havebeen acquired or derived by his illegal activities.

(3) Where it is proved that the accused has kidnapped or abducted any person, the Special Court shallpresume that it was for ransom.

18. Certain confessions made to police officer to be taken into consideration.(1) Notwithstanding anything in the Code or in the Indian Evidence Act 1872, but subject to the provisions of

this section, a confession made by a person before a police officer not below the rank of the Superintendentof Police and recorded by such police officer either in writing or on any mechanical devices like cassettes,tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial ofsuch person or co-accused, abettor or conspirator:Provided that, the co-accused, abettor or conspirator is charged and tried in the same case together withthe accused.

(2) The confession shall be recorded in a free atmosphere in the same language in which the person isexamined and as narrated by him.

(3) The Police Officer shall, before recording any confession under sub-section (1), explain to the personmaking it that he is not bound to make a confession and that, if he does so, it may be used as evidenceagainst him and such police officer shall not record any such confession unless upon questioning the



person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, afterrecording such voluntary confession, certify in writing below the confession about his personal satisfactionof the voluntary character of such confession, putting the dace and time of the same.

(4) Every confession recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan Magistrateor the Chief Judicial Magistrate having jurisdiction over the area in which such confession has beenrecorded and such Magistrate shall forward the recorded confession so receive to the Special Court whichmay take cognizance of the offence.

(5) The person from whom a confession has been recorded under sub-section (I) shall also be produced beforethe Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required tobe sent under sub-section (4) alongwith the original statement of confession, written or recorded onmechanical device without unreasonable delay.

(6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement,if any, made by the accused so produced and get his .signature and in case of any complaint of torture, theperson shall be directed to be produced for medical examination before a Medical Officer not lower in rankthan of an Assistant Civil Surgeon.

19. Protection of Witness(1) Notwithstanding anything contained in the Code, the proceeding under this Act may be held in Camera,

if the Special Court so desires:(2) A Special Court may, on an application made by a witness in any proceeding before it or by the Public

Prosecutor in relation to such witness or on its own motion, take such measures as it deems fit for keepingthe identity and address of any witness secret.

(3) In particular, and without prejudice to the generality of the provisions of sub-section (2), the measureswhich a Special Court may take under that sub-section may include,—(a) the holding of the proceedings at a place to be decided by the Special Court;(b) the avoiding of the mention of the names and addresses of the witnesses in its orders or judgements

or in any records of, the case accessible to public.(c) the issuing of any directions for securing that the identity and addresses of the witnesses are not

disclosed;(d) that, it is in the public interest to order that all or any of the proceeding pending before such a Court

shall not be published in any manner.(4) Any person who contravenes any direction issued under subsection (3) shall be punishable with

imprisonment for a term which may extend to one year and with fine which may extend to one thousandrupees.

20. Forfeiture and attachment of property.(1) Where a person has been convicted of any offence punishable under, this Act, the Special Court may, in

addition to awarding any punishment, by order in writing, declare that any property, movable or immovableor both, belonging to the accused and specified in the order, shall stand forfeited to the State Government,free from all encumbrances.

(2) Where any person is accused of any offence under this Act, it shall be open to the Special Court tryinghim, to pass on order that all or any properties, movable or immovable or both belonging to him, shall,during the period of such trial, be attached, and where such trial ends in conviction, the properties soattached shall stand forfeited to the State Government free from all encumbrances.

(3)(a) If, upon a report in writing made by an investigating police officer with the approval of the supervisoryofficer referred to in subsection (1) of section 14, any Special Court has reason to believe that any person,who has committed an offence punishable under this Act has absconded or is concealing himself so thathe may not be apprehended, such Court may, notwithstanding anything contained in section 82 of theCode, publish a written proclamation requiring him to appear at a specified place and at a specified timenot less than fifteen days but not more than thirty days from the publication of such proclamation.Provided that, if the investigating police officer concerned fails to arrest the accused, who has abscondedor is concealing himself, within a period of three months from the date of registering the offence againstsuch person, the officer shall, on the expiry of the said period, make a report to the Special Court forissuing the proclamation.

(b) The Special Court issuing a proclamation under clause (a) may, at any time, order the attachment of anyproperty, movable or immovable or both; belonging to the proclaimed person, and thereupon the provisionsof sections 83 to 85 of the Code shall apply to such attachment as if such attachment were made underthat Code.

(c) If, within six months from the date of attachment, any person, whose property is, or has been, at thedisposal of the State Government under sub-section (2) of section 85 of the Code, appears voluntarily oris apprehended and brought before the Special Court by whose order the property was attached, or theCourt to which such Court is subordinate, and proves to the satisfaction of such Court that he did notabscond-or conceal himself for the purpose of avoiding apprehension and that he had not received suchnotice of the proclamation as to enable him to attend within the specified time therein, such property or,if the same has been sold, the net proceeds of the same and the residue of the property, shall, aftersatisfying therefore all costs incurred in consequence of the attachment, be delivered to him.



21. Modified application of certain provisions of the code.(1) Notwithstanding anything contained in the Code or in any other law, every offence punishable under this

Act, shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Codeand “cognizable case” as defined in that clause shall be construed accordingly.

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Actsubject to the modifications that, in sub-section(2),—(a) the reference to “‘fifteen days”, and “sixty days” wherever they occur, shall be construed as references

to “thirty days” and “ninety days” respectively;(b) after the proviso, the following proviso shall be inserted, namely :-

“Provided further that if it is not possible to complete the investigation within the said period ofninety days, the Special Court shall extend the said period upto one hundred and eighty days, on thereport of the Public Prosecutor indicating the progress of the investigation and the specific reasonsfor the detention of the accused beyond the said period of ninety days”

(3) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any personon an accusation of having committed an offence punishable under this Act.

(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under thisAct shall, if in custody, be released on bail or on his own bond, unless-(a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable

grounds for believing that he is not guilty of such offence and that lie is not likely to commit anyoffence while on bail.

(5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed bythe Court that he was on bail in an offence under this Act, or under any other Act, on the date of theoffence in question.

(6) The limitations on granting of bail specified in sub-section (4) are in addition to the limitations under theCode or any other law for the time being in force on the granting of bail.

(7) The police officer seeking the custody of any person for pre- indictment or pre-trial interrogation from thejudicial custody shall file a written statement explaining the reason for seeking such, custody and also forthe delay, if any in seeking the police custody.

22. Presumption as to offences under section 3.(1) In a prosecution for an offence of organised crime punishable under section 3, if it is proved—

(a) that unlawful arms and other material including documents or papers were recovered from thepossession of the accused and there is reasons to believe that such unlawful arms and other materialincluding documents or papers were in the commission of such offence; or

(b) that by the evidence of an expert, the finger prints of the accused were found at the site of theoffence or on anything including unlawful arms and other material including documents or papersand vehicle used in connection with the commission of such offence, the Special Court shall presume,unless the contrary is proved, that the accused had committed such offence.

(2) In a prosecution for an offence of organised crime punishable under sub-section (2) of section 3, if it isproved that the accused rendered any financial assistance to a person accused of, or reasonably suspectedof, an offence of organised crime, the Special Court shall presume, unless the contrary is-proved, thatsuch person has committed the offence under the said sub-section (2).

23. Cognizance of, and investigation into, an offence.(1) Notwithstanding anything contained in the Code

(a) no information about the commission of an offence of organised crime under this Act, shall berecorded by a police officer without the prior approval of the police officer not below the rank of theDeputy Inspector General of Police;

(b) no investigation of an offence under the provisions of this Act shall be carried our by a police officerbelow the rank of the Deputy Superintendent of Police.

(2) No Special Court shall take cognizance of any offence under this Act without the precious, sanction of thepolice officer not below the rank of Additional Director General of Police.

24. Punishment for public servants failing in the discharge of their duties.Whoever being a public servant renders any help or support in any manner in the commission of organised crimeas defined in clause (e) of section 2, whether before or after the commission of any offence by a member of anorganised crime syndicate or abstains from taking lawful measures under this Act or intentionally avoids to carryout the directions of any Court or of the superior police officers in this respect, shall be punished with imprisonmentof either description for a term which may extend to three years and also with fine.

25. Overriding effect.The provisions of this Act or any rule made there under or any order made under any such rule shall, have effectnotwithstanding anything inconsistent therewith contained in any other law for the time being in force or in anyinstrument having the force of law.

26. Protection of action taken in good faith.No Suit, prosecution or other legal proceeding shall lie against the State Government or any officer or authority



of the State Government for anything which is in good faith done or intended to be done in pursuance of this Actor any rule made there under or any order issued under any such rule.

27. Annual Report of Interceptions.(1) The State Government shall cause an annual report to be prepared giving a full account of,

(i) the number of applications for authorisation of interceptions received by the Competent Authorityfrom the Police Department in which; prosecutions have been launched;

(ii) the number of such applications permitted or rejected;(iii) the number of interceptions carried out in emergency situations and the number of ex-post-facto

authorisations or approvals granted or rejected in such matters;(iv) the number of prosecutions launched based on such interceptions and, convictions resulting from

such interceptions, along with an explanatory memorandum giving general assessment of the utilityand importance of the interceptions authorised.

(2) Such annual report shall be laid by the State Government before each House of the State Legislaturewithin three months of the completion of every calendar year:Provided that, if the State Government is of the opinion that the inclusion of any matter in the annualreport would be prejudicial to the security of the State, or to the prevention or detection of any organisedcrime,: the State Government may exclude such matter from being included in such annual report.

28. Power of High Court to make rules.The High Court may, by notification in the Official Gazette, make such rules as it may deem necessary for carryingout the provisions of, this. Act relating to the Special Courts.

29. Power of State Government to make rules.(1) Without prejudice to the powers of the High Court to make rules under section 28, the State Government

may, by notification in the Official Gazette, make rules for carrying out the purpose of this Act.(2) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of the

State Legislature, while it is in session, for a total period of thirty days which may be comprised in onesession or in two or more successive sessions, and if, before the expiry of the session immediately followingthe session or the successive sessions aforesaid, both Houses agree in making any modification in the ruleor both Houses agree that the rule should not be made, and notify such decision in the Official Gazette,the rule shall, from the date of publication of such notification have effect only in such modified form orbe of no effect, as the case may be, so however, that any such modification or annulment shall be withoutprejudice to the validity of anything previously done under that rule.

30. Repeal of Mali. Ord. III of 1999 and saving(1) The Maharashtra Control of Organised Crime Ordinance 1999 is hereby repealed.(2) Notwithstanding such repeal anything done or any action taken under the said Ordinance shall be deemed

to have been done or taken, as the case may be, under the corresponding provisions of this Act.



ENDNOTESThe Indian Penal Code, 1860

i 361. Kidnapping from lawful guardianship.Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of ageif a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor orperson of unsound mind, without the consent of such guardian, is said to kidnap such minor or personfrom lawful guardianship.Explanation – The words “lawful guardian” in this section include any person lawfully entrusted withthe care or custody of such minor or other person.Exception – This section does not extend to the act of any person who in good faith believes himself tobe the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawfulcustody fo such child, unless such act is committed for an immoral or unlawful purpose.

363. Punishment for kidnappingWhoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonmentof either description for a term which may extend to seven years, and shall also be liable to fine.

ii 365. Kidnapping or abducting with intent secretly and wrongfully to confine person. Whoever kidnapsor abducts any person with intent to cause that person to be secretly and wrongfully confined, shall bepunished with imprisonment of either description for a term which may extend to seven years, andshall also be liable to fine.

iii 363-A Kidnapping or maiming a minor for purposes of begging.(1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of theminor, in order that such minor may be employed or used for the purpose of begging shall be punishablewith imprisonment of either description for a term which may extend to ten years, and shall also beliable to fine.(2) Whoever maims any minor in order that such minor may be employed or used for the purposes ofbegging shall be punishable with imprisonment for life, and shall also be liable to fine.(3) Where any person, not being the lawful guardian of a minor, employs or uses such minor for thepurposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwiseobtained the custody of that minor in order that the minor might be employed or used for the purposesof begging.(4) In this section-(a) “begging’ means-(i) soliciting or receiving alms in a public place, whether under the pretence of singing dancingfortunetelling, performing tricks or selling articles or otherwise;(ii) entering on any private premises for the purpose of soliciting or receiving alms;(iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury,deformity or disease, whether of himself or of any other person or of an animal;(iv) using a minor as an exhibit for the purpose of soliciting or receiving alms;(b) “minor” means-(i) in the case of a male, a person under sixteen years of age; and(ii) in the case of a female, a person under eighteen years of age.

iv 368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person.Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals orconfines such person, shall be punished in the same manner as if he had kidnapped or abducted suchperson with the same intention or knowledge, or for the same purpose as that with or for which heconceals or detains such person in confinement.

v 339. Wrongful restraint.Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any directionin which that person has a right to proceed, is said wrongfully to restrain that person.



vi 340. Wrongful confinement.Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedingbeyond certain circumscribing limits, is said ‘wrongfully to confine’ that person.

vii 341. Punishment for wrongful restraintWhoever wrongfully restrains any person shall be punished with simple imprisonment for a term whichmay extend to one month, or with fine which may extend to five hundred rupees, or with both.

viii 342. Punishment for wrongful confinementWhoever wrongfully confines any person shall be punished with imprisonment of either description fora term which may extend to one year, or with fine which may extend to one thousand rupees or withboth.

ix 343. Wrongful confinement for three or more days.Whoever wrongfully confines any person for three days or more, shall be punished with imprisonmentof either description for a term which may extend to two years, or with fine, or with both.

344. Wrongful confinement for ten or more days.Whoever wrongfully confines any person for ten days, or more, shall be punished with imprisonment ofeither description for a term which may extend to three years, and shall also be liable to fine.

346. Wrongful confinement in secret.Whoever wrongfully confines any person in such manner as to indicate an intention that the confinementof such person may not be known to any person interested in the person so confined, or to any publicservant, or that the place of such confinement may not be known to or discovered by any such personor public servant as hereinbefore mentioned, shall be punished with imprisonment of either descriptionfor a term which may extend to two years in addition to any other punishment to which he may beliable for such wrongful confinement

347. Wrongful confinement to extort property, or constrain to illegal act.Whoever wrongfully confines any person for the purpose of extorting from the person confined, or fromany person interested in the person confined, any property or valuable security or of constraining theperson confined or any person interested in such person to do anything illegal or to give any informationwhich may facilitate the commission of an offence, shall be punished with imprisonment of eitherdescription for a term which may extend to three years, and shall also be liable to fine.

x 34. Acts done by several persons in furtherance of common intention .When a criminal act is done by several persons, in furtherance of the common intention of all, each ofsuch persons is liable for that act in the same manner as if it were done by him alone.

xi 107. Abetment of a thing.A person abets the doing of a thing, who—First.—Instigates any person to do that thing; or,Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of thatthing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doingof that thing; orThirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing.Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material factwhich he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thingto be done, is said to instigate the doing of that thing.Explanation 2 – Whoever, either prior or at the time of the commission of an act, does anything in orderto facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid thedoing of that act.

108. AbettorA person abets an offence, who abets either the commission of an offence, or the commission of an act



which would be an offence, if committed by a person capable by law of committing an offence with thesame intention or knowledge as that of the abettor.

108-A. Abetment in India of offences outside IndiaA person abets an offence within the meaning of this Code who, in India, abets the commission of anyact without and beyond India which would constitute the offence if committed in India.

xii 109. Punishment of abetment if the act abetted is committed in consequence and where no expressprovision is made for its punishmentWhoever abets any offence shall, if the act abetted is committed in consequence of the abetment, andno express provision is made by this Code for the punishment of such abetment, be punished with thepunishment provided for the offence.Explanation—An act or offence is said to be committed in consequence of abetment, when it is committedin consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutesthe abetment.

xiii 110. Punishment of abetment if person abetted does act with different intention from that of abettorWhoever abets the commission of an offence shall, if the person abetted does the act with a differentintention or knowledge from that of the abettor, be punished with the punishment provided for theoffence which would have been committed if the act had been done with the intention or knowledge ofthe abettor and with no other.

xiv 111. Liability of abettor when one act abetted and different act doneWhen an act is abetted and a different act is done, the abettor is liable for the act done, in the samemanner and to the same extent as if he had directly abetted it:Proviso - Provided the act done was a probable consequence of the abetment, and was committed underthe influence of the instigation, or with the aid or in pursuance of the conspiracy which constitutedthe abetment.

112. Abettor when liable to cumulative punishment for act abetted and for act doneIf the act for which the abettor is liable under the last preceding section is committed in addition to theact abetted, and constitutes a distinct offence, the abettor is liable to punishment for each of theoffences.

xv 113. Liability of abettor for an effect caused by the act abetted different from that intended by theabettor.When an act is abetted with the intention on the part of the abettor of causing a particular effect, andan act for which the abettor is liable in consequence of the abetment, causes a different effect fromthat intended by the abettor, the abettor is liable for the effect caused, in the same manner and to thesame extent as if he had abetted the act with the intention of causing that effect, provided he knewthat the act abetted was likely to cause that effect.

xvi 114. Abettor present when offence is committedWhenever any person who if absent would be liable to be punished as an abettor, is present when theact or offence for which he would be punishable in consequence of the abetment is committed, he shallbe deemed to have committed such act or offence.

xvii 115. Abetment of offence punishable with death or imprisonment for life - if offence not committedWhoever abets the commission of an offence punishable with death or imprisonment for life, shall, ifthat offence be not committed in consequence of the abetment, and no express provision is made bythis Code for the punishment of such abetment, be punished with imprisonment of either descriptionfor a term which may extend to seven years, and shall also be liable to fine;If the act causing harm be done in consequence. - and if any act for which the abettor is liable inconsequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liableto imprisonment of either description for a term which may extend to fourteen years, and shall also beliable to fine.



xviii 116. Abetment of offence punishable with imprisonment—if offence be not committedWhoever abets an offence punishable with imprisonment shall, if that offence be not committed inconsequence of the abetment, and no express provision is made by this Code for the punishment of suchabetment, be punished with imprisonment of any description provided for that offence for a termwhich may extend to one fourth part of the longest term provided for that offence, or with such fine asis provided for that offence, or with both;If abettor or person abetted be a public servant whose duty it is to prevent offence - and if theabettor or the person abetted is a public servant, whose duty it is to prevent the commission of suchoffence, the abettor shall be punished with imprisonment of any description provided for that offence,for a term which may extend to one-half of the longest term provided for that offence, or with suchfine as is provided for the offence, or with both.

117. Abetting commission of offence by the public or by more than ten personsWhoever abets the commission of an offence by the public generally or by any number or class ofpersons exceeding ten, shall be punished with imprisonment of either description for a term which mayextend to three years, or with fine, or with both.

118. Concealing design to commit offence punishable with death or imprisonment for lifeWhoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commissionof an offence punishable with death or imprisonment for life, voluntarily conceals by any act or illegalomission, the existence of a design to commit such offence or makes any representation which heknows to be false respecting such design.If offence be committed- if offence be not committed- shall, if that offence be committed, bepunished with imprisonment of either description for a term which may extend to seven years, or if theoffence be not committed with imprisonment of either description, for a term which may extend tothree years and in either case, shall also be liable to fine.

119. Public servant concealing design to commit offence which it is his duty to preventWhoever being a public servant, intending to facilitate or knowing it to be likely that he will therebyfacilitate the commission of an offence which it is his duty as such public servant to prevent, voluntarilyconceals, by any act or illegal omission, the existence of a design to commit such offence, or makes anyrepresentation which he knows to be false respecting such design,If offence be committed- shall, if the offence be committed, be punished with imprisonment of anydescription provided for the offence, for a term which may extend to one half of the longest term ofsuch imprisonment, or with such fine as is provided for that offence, or with both.If offence be punishable with death etc- or, if the offence be punishable with death or imprisonmentfor life, with imprisonment of either description for a tern which may extend to ten years;If offence be not committed- or if the offence be not committed, shall be punished with imprisonmentof any description provided for the offence for a term which may extend to one fourth part of thelongest term of such imprisonment or with such fine as is provided for the offence, or with both.

120. Concealing design to commit offence punishable with imprisonmentWhoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commissionof an offence punishable with imprisonment, voluntarily conceals by any act or illegal omission, theexistence of a design to commit such offence, or makes any representation which he knows to be falserespecting such design,If offence be committed- if offence be not committed- shall, if the offence be committed, bepunishesd with imprisonment of the description provided for the offence, for a term which may extendto one-fourth, and, if the offence be not committed, to one-eighth, of the longest term of suchimprisonment, or with such fine as is provided for the offence, or with both.

xix 120A. Definition of criminal conspiracyWhen two or more persons agree to do, or cause to be done,—(1) an illegal act, or(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:Provided that no agreement except an agreement to commit an offence shall amount to a criminal



conspiracy unless some act besides the agreement is done by one or more parties to such agreement inpursuance thereof.Explanation —It is immaterial whether the illegal act is the ultimate object of such agreement, or ismerely incidental to that object.

120B- Punishment of criminal conspiracy(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonmentfor life or rigorous imprisonment for a term of two years or upwards, shall, where no express provisionis made in this Code for the punishment of such a conspiracy, be punished in the same manner as if hehad abetted such offence.(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offencepunishable as aforesaid shall be punished with imprisonment of either description for a term notexceeding six months, or with fine or with both.

xx 349. ForceA person is said to use force on another if he causes motion, change of motion, or cessation of motionto that other, or if he causes to any substance such motion, or change of motion, or cessation of motionas brings that substance into contact with any part of that other’s body, or with anything which thatother is wearing or carrying, or with anything so situated that such contact affects that other’s senseof feeling:Provided that the person causing the motion, or change of motion, or cessation of motion, causes thatmotion, change of motion, or cessation of motion in one of the three ways hereinafter described:First- By his own bodily power.Secondly- By disposing any substance in such a manner that the motion or change or cessation ofmotion takes place without any further act on his part, or on the part of any other person.Thirdly- By inducing any animal to move, to change its motion, or to cease to move.

350. Criminal ForceWhoever intentionally uses force to any person, without that person’s consent, in order to the committingof any offence, or intending by the use of such force to cause, or knowing it to be likely that by the useof such force he will cause injury, fear or annoyance to the person to whom the force is used, is said touse criminal force to that other.

351. AssaultWhoever makes any gesture, or any preparation intending or knowing it to be likely that such gestureor preparation will cause any person present to apprehend that he who makes that gesture or preparationis about to use criminal force to that person, is said to commit an assault.Explanation- Mere words do not amount to an assault. But the words which a person uses may give tohis gestures or preparation such a meaning as may make those gestures or preparations amount to anassault.

352. Punishment for assault or criminal force otherwise than on grave provocationWhoever assaults or uses criminal force to any person otherwise than on grave and sudden provocationgiven by that person, shall be punished with imprisonment of either description for a term which mayextend to three months, or with fine which may extend to five hundred rupees or with both.Explanation- Grave and sudden provocation will not mitigate the punishment for an offence under thissection. If the provocation is sought or voluntarily provoked by the offender as an excuse for theoffence, or if the provocation is given by anything done in obedience to the law, or by a public servant,in the lawful exercise of the powers of such public servant, or if the provocation is given by anythingdone in the lawful exercise of the right of private defence.Whether the provocation was grave and sudden enough to mitigate the offence, is a question of fact.

353. Assault or criminal force to deter public servant from discharge of his dutyWhoever assaults or uses criminal force to any person being a public servant in the execution of hisduty as such public servant, or with intent to prevent or deter that person from discharging his duty assuch public servant or in consequence of anything done or attempted to be done by such person in the



lawful discharge of his duty as such public servant, shall be punished with imprisonment of eitherdescription for a term which may extend to two years, or with fine, or with both.

354. Assault or criminal force to woman with intent to outrage her modestyWhoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likelythat he will thereby outrage her modesty shall be punished with imprisonment of either description fora term which may extend to two years, or with fine, or with both.

355. Assault or criminal force with intent to dishonour person, otherwise than on grave provocationWhoever assaults or uses criminal force to any person, intending thereby to dishonour that person,otherwise than on grave and sudden provocation given by that person, shall be punished withimprisonment of either description for a term which may extend to two years, or with fine, or withboth.

356. Assault or criminal force in attempt to commit theft of property carried by a personWhoever assaults or uses criminal force to any person, in attempting to commit theft on any propertywhich that person is then wearing or carrying, shall be punished with imprisonment of either descriptionfor a term which may extend to two years, or with fine or with both.

357. Assault or criminal force in attempt wrongfully to confine a personWhoever assaults or uses criminal force to any person, in attempting wrongfully to confine that person,shall be punished with imprisonment of either description for a term which may extend to one year, orwith fine which may extend to one thousand rupees or with both

358. Assault or criminal force on grave provocationWhoever assaults or uses criminal force to any person on grave and sudden provocation given by thatperson, shall be punished with simple imprisonment for a term which may extend to one month, orwith fine which may extend to two hundred rupees or both.

xxi 415. CheatingWhoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliverany property to any person, or to consent that any person shall retain any property, or intentionallyinduces the person so deceived to do or omit to do anything which he would not do or omit if he werenot so deceived, and which act or omission causes or is likely to cause damage or harm to that personin body, mind, reputation or property, is said to ‘cheat.’Explanation —A dishonest concealment of facts is a deception within the meaning of this section.

416. Cheating by personationA person is said to ‘cheat by personation’ if he cheats by pretending to be some other person, or byknowingly substituting one person for another, or representing that he or any other person is a personother than he or such other person really is.Explanation —The offence is committed whether the individual personated is a real or imaginaryperson.

417. Punishment for cheatingWhoever cheats shall be punished with imprisonment of either description for a term which may extendto one year, or with fine, or with both.

418. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is boundto protectWhoever cheats with the knowledge that he is likely to cause wrongful loss to a person whose interestin the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, toprotect, shall be punished with imprisonment of either description for a term which may extend tothree years, or with fine, or with both.



419. Punishment for cheating by personationWhoever cheats by personation shall be punished with imprisonment of either description for a termwhich may extend to three years, or with fine, or with both.

xxii 24. DishonestlyWhoever does anything with the intention of causing wrongful gain to one person or wrongful loss toanother person, is said to do that thing ‘dishonestly.’

25. FraudulentlyA person is said to do a thing fraudulently if he does that thing with intent to defraud but nototherwise.

xxiii 441. Criminal trespassWhoever enters into or upon property in the possession of another with intent to commit an offence orto intimidate, insult or annoy any person in possession of such property, or having lawfully enteredinto or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoyany such person, or with intent to commit an offence, is said to commit ‘criminal trespass.’

xxiv 503. Criminal intimidationWhoever threatens another with any injury to his person, reputation or property, or to the person orreputation of any one in whom that person is interested, with intent to cause alarm to that person, orto cause that person to do any act which he is not legally bound to do, or to omit to do any act whichthat person is legally entitled to do, as the means of avoiding the execution of such threat, commitscriminal intimidation.Explanation- a threat to injure the reputation of any deceased person in whom the person threatenedis interested, is within this section.

504. Intentional insult with intent to provoke breach of the peaceWhoever intentionally insults, and thereby gives provocation to any person, intending or knowing it tobe likely that such provocation will cause him to break the public peace, or to commit any otheroffence, shall be punished with imprisonment of either description for a term which may extend to twoyears, or with fine, or with both.

506. Punishment for criminal intimidationWhoever commits the offence of criminal intimidation shall be punished with imprisonment of eitherdescription for a term which may extend to two years, or with fine, or with both;If threat be to cause death or grievous hurt, etc. – and if the threat be to cause death or grievoushurt, or to cause the destruction of any property by fire, or to cause an offence punishable with deathor imprisonment for life or with imprisonment for a term which may extend to seven years, or toimpute unchastity to a woman, shall be punished with imprisonment of either description for a termwhich may extend to seven years, or with fine, or with both.

507. Criminal intimidation by an anonymous communicationWhoever commits the offence of criminal intimidation by an anonymous communication, or havingtaken precaution to conceal the name or abode of the person from whom the threat comes, shall bepunished with imprisonment of either description for a term which may extend to two years, in additionto the punishment provided for the offence by the last preceding section.

508. Act caused by inducing person to believe that he will be rendered an object of the divine displeasureWhoever voluntarily causes or attempts to cause any person to do anything which that person is notlegally bound to do, or to omit to do anything which he is legally entitled to do, by inducing orattempting to induce that person to believe that he or any person in whom he is interested will becomeor will be rendered by some act of the offender, an object of divine displeasure if he does not do thething which it is the object of the offender to cause him to do, or if he does the thing which it is theobject of the offender to cause him to omit, shall be punished with imprisonment of either descriptionfor a term which may extend to one year, or with fine or with both.



509. Word, gesture or act intended to insult the modesty of a womanWhoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture,or exhibits any object, intending that such word or sound shall be heard, or that such gesture or objectshall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished withsimple imprisonment for a term which may extend to one year, or with fine or with both.

xxv 375. Rape.A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercoursewith a woman under circumstances falling under any of the six following descriptions: -First.- Against her willSecondly.- Without her consentThirdly.- With her consent, when her consent has been obtained by putting her or any person in whomshe is interested in fear of death or hurtFourthly.- With her consent, when the man knows that he is not her husband, and that her consent isgiven because she believes that he is another man to whom she is or believes herself to be lawfullymarriedFifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mindor intoxication or the administration by him personally or through another of any stupefying orunwholesome substance, she is unable to understand the nature and consequences of that to which shegives consentSixthly.- With or without her consent, when she is under sixteen years of ageExplanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence ofrapeException.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years ofage, is not rape.

376. Punishment for rape(1) Whoever, except in the cases provided for by sub-section (1), commits rape shall be punished withimprisonment of either description for a term which shall not be less than seven years but which maybe for life or for a term which may extend to ten years and shall also be liable to fine unless the womenraped is his own wife and is not under twelve years of age, in which cases, he shall be punished withimprisonment of either description for a term which may extend to two years or with fine or with both:Provided that the court may, for adequate and special reasons to be mentioned in the judgment, imposea sentence of imprisonment for a term of less than seven years.(2) Whoever,—(a) being a police officer commits rape-(i) within the limits of the police station to which he is appointed; or(ii) in the premises of any station house whether or not situated in the police station to which he isappointed; or(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or(b) being a public servant, takes advantage of his official position and commits rape on a woman in hiscustody as such public servant or in the custody of a public servant subordinate to him; or(c) being on the management or on the staff of a jail, remand home or other place of custody establishedby or under any law for the time being in force or of a woman’s or children’s institution takes advantageof his official position and commits rape on any inmate of such jail, remand home, place or institution;or(d) being on the management or on the staff of a hospital, takes advantage of his official position andcommits rape on a woman in that hospital; or(e) commits rape on a woman knowing her to be pregnant; or(f) commits rape on a woman when she is under twelve years of age; or(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be lessthan ten years but which may be for life and shall also be liable to fine:Provided that the court may, for adequate and special reasons to be mentioned in the judgment, imposea sentence of imprisonment of either description for a term of less than ten years,



Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance oftheir common intention, each of the persons shall be deemed to have committed gang rape within themeaning of this sub-section.Explanation 2.—”Women’s or children’s institution” means an institution, whether called an orphanageor a home for neglected woman or children or a widows’ home or by any other name, which is establishedand maintained for the reception and care of women or children.Explanation 3.—”Hospital” means the precincts of the hospital and includes the precincts of anyinstitution for the reception and treatment of persons during convalescence or of persons requiringmedical attention or rehabilitation.

376-A. Intercourse by a man with his wife during separationWhoever has sexual intercourse with his own wife, who is living separately from him under a decree ofseparation or under any custom or usage without her consent shall be punished with imprisonment ofeither description for a term which may extend to two years and shall also be liable to fine.

376-B. Intercourse by public servant with woman in his custodyWhoever, being a public servant, takes advantage of his official position and induces or seduces, anywoman, who is in his custody as such public servant or in the custody of a public servant subordinateto him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence ofrape, shall be punished with imprisonment of either description for a term which may extend to fiveyears and shall also be liable to fine.

376-C. Intercourse by superintendent of jail, remand home, etc.Whoever, being the superintendent or manager of a jail, remand home or other place of custody establishedby or under any law for the time being in force or of a women’s or children’s institution takes advantageof his official position and induces or seduces any female inmate of such jail, remand home, place orinstitution to have sexual intercourse with him, such sexual intercourse not amounting to the offenceof rape, shall be punished with imprisonment of either description for a term which may extend to fiveyears and shall also be liable to fine.Explanation 1.—”Superintendent” in relation to jail, remand home or other place of custody or awomen’s or children’s institution includes a person holding any other office in such jail, remand home,place or institution by virtue of which he can exercise any authority or control over its inmates.Explanation 2.—The expression “women’s or children’s institution” shall have the same meaning as inExplanation 2 to subsection (2) of section 376.

376-D. Intercourse by any member of the management or staff of a hospital with any woman in thathospitalWhoever, being on the management of a hospital or being on the staff of a hospital takes advantage ofhis position and has sexual intercourse with any woman in that hospital, such sexual intercourse notamounting to the offence of rape, shall be punished with imprisonment of either description for a termwhich may extend to five years and shall also be liable to fine.Explanation.—The expression “hospital” shall have the same meaning as in Explanation 3 to sub-section (2) of section 376.

xxvi 377. Unnatural OffencesWhoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal,shall be punished with imprisonment for life, or with imprisonment of either description for a termwhich may extend to ten years, and shall also be liable to fine.Explanation.- Penetration is sufficient to constitute the carnal intercourse necessary to the offencedescribed in this section.

xxvii 319. Hurt.-Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.



320. Grievous hurtThe following kinds of hurt only are designated as “grievous”-First- EmasculationSecondly- Permanent privation of the sight of either eyeThirdly- Permanent privation of the hearing of either earFourthly- Privation of any member or jointFifthly- Destruction or permanent impairing of the powers of any member or jointSixthly- Permanent disfiguration of the head or faceSeventhly- Fracture or dislocation of a bone or toothEighthly- Any hurt which endangers life or which causes the sufferer to be during the space of twentydays in severe bodily pain, or unable to follow his ordinary pursuits.

321. Voluntarily causing hurtWhoever does any act with the intention of thereby causing hurt to any person, or with the knowledgethat he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said‘voluntarily to cause hurt’.

322. Voluntarily causing grievous hurtWhoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely tocause is grievous hurt, and if the hurt which he causes is grievous hurt, is said ‘voluntarily to causegrievous hurt’Explanation- A person is not said voluntarily to cause grievous hurt except when he both causesgrievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarilyto cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind,he actually causes grievous hurt of another kind.

323. Punishment for voluntarily causing hurtWhoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punishedwith imprisonment of either description for a term which may extend to one year, or with fine whichmay extend to one thousand rupees, or with both.

324. Voluntarily causing hurt by dangerous weapons or meansWhoever, except in the case provided for by section 334, voluntarily causes hurt by means of anyinstrument for shooting, stabbing or cutting or any instrument which, used as a weapon of offence, islikely to cause death, or by means of fire or any heated substance or by means of any poison or anycorrosive substance, or by means of any explosive substance or by means of any substance which isdeleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of anyanimal, shall be punished with imprisonment of either description for a term which may extend tothree years, or with fine, or with both.

325. Voluntarily causing grievous hurtWhoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall bepunished with imprisonment of either description for a term which may extend to seven years and shallalso be liable to fine.

326. Voluntarily causing grievous hurt by dangerous weapons or meansWhoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means ofany instrument for shooting, stabbing or cutting or any instrument which, used as a weapon of offence,is likely to cause death, or by means of fire or any heated substance or by means of any poison or anycorrosive substance, or by means of any explosive substance or by means of any substance which isdeleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of anyanimal, shall be punished with imprisonment of either description for a term which may extend to tenand shall also be liable to fine.

327. Voluntarily causing hurt to extort property, or to constrain to an illegal actWhoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or from any person



interested in the sufferer, any property or valuable security, or of constraining the sufferer or anyperson interested in sufferer to do anything which is illegal or which may facilitate the commission ofan offence, shall be punished with imprisonment of either description for a term which may extend toten years, and shall also be liable to fine.

328. Causing hurt by means of poison etc. with intent to commit an offenceWhoever administers to or causes to be taken by any person any poison or any stupefying, intoxicatingor unwholesome drug, or other thing with intent to cause hurt to such person, or with intent tocommit or to facilitate the commission of an offence or knowing it to be likely that he will facilitate thecommission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punishedwith imprisonment of either description for a term which may extend to ten years, and shall also beliable to fine.

329. Voluntarily causing grievous hurt to extort property, or to constrain to an illegal actWhoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or from anyperson interested in the sufferer any property or valuable security, or of constraining the sufferer orany person interested in such sufferer to do anything that is legal or which may facilitate the commissionof an offence, shall be punished with imprisonment for life, or imprisonment of either description fora term which may extend to ten years, and shall also be liable to fine.

330. Voluntarily causing hurt to extort confession, or to compel restoration of propertyWhoever voluntarily causes hurt for the purpose of extorting from the sufferer or from any personinterested in the sufferer any confession or any information which may lead to the detection of anoffence or misconduct, or for the purpose of constraining the sufferer or any person interested in thesufferer to restore or to cause the restoration of any property or valuable security or to satisfy anyclaim or demand, or to give information which may lead to the restoration of any property or valuablesecurity shall be punished with imprisonment of either description for a term which may extend toseven years, and shall also be liable to fine.

331. Voluntarily causing grievous hurt to extort confession, or to compel restoration of propertyWhoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or from anyperson interested in the sufferer any confession or any information which may lead to the detection ofan offence or misconduct, or for the purpose of constraining the sufferer or any person interested inthe sufferer to restore or to cause the restoration of any property or valuable security or to satisfy anyclaim or demand, or to give information which may lead to the restoration of any property or valuablesecurity shall be punished with imprisonment of either description for a term which may extend to tenyears, and shall also be liable to fine.

332. Voluntarily causing hurt to deter public servant from his dutyWhoever voluntarily causes hurt to any person being a public servant in the discharge of his duty assuch public servant, or with intent to prevent or deter that person or any other public servant fromdischarging his duty as such public servant or in consequence of anything done or attempted to bedone by that person in the lawful discharge of his duty as such public servant, shall be punished withimprisonment of either description for a term which may extend to three years, or with fine, or withboth.

333. Voluntarily causing grievous hurt to deter public servant from his dutyWhoever voluntarily causes grievous hurt to any person being a public servant in the discharge of hisduty as such public servant, or with intent to prevent or deter that person or any other public servantfrom discharging his duty as such public servant or in consequence of anything done or attempted tobe done by that person in the lawful discharge of his duty as such public servant, shall be punishedwith imprisonment of either description for a term which may extend to ten years, or with fine, or withboth.

334. Voluntarily causing hurt on provocationWhoever voluntarily causes hurt on grave and sudden provocation, if he neither intends nor knows



himself to be likely to cause hurt to any person other than the person who gave the provocation, shallbe punished with imprisonment of either description for a term which may extend to one month, orwith fine which may extend to five hundred rupees, or with both.

335. Voluntarily causing grievous hurt on provocationWhoever voluntarily causes grievous hurt on grave and sudden provocation, if he neither intends norknows himself to be likely to cause hurt to any person other than the person who gave the provocation,shall be punished with imprisonment of either description for a term which may extend to four years,or with fine which may extend to two thousand rupees, or with both.Explanation- the last two sections are subject to the same provisos as Exception 1, Section 300

336. Act endangering life or personal safety of othersWhoever does any act so rashly or negligently as to endanger human life or the personal safety ofothers, shall be punished with imprisonment of either description for a term which may extend to threemonths, or with fine which may extend to two hundred and fifty rupees, or with both.

337. Causing hurt by act endangering life or personal safety of othersWhoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life,or the personal safety of others, shall be punished with imprisonment of either description for a termwhich may extend to six months, or with fine which my extend to five hundred rupees, or with both.

338. Causing grievous hurt by act endangering life or personal safety of othersWhoever causes grievous hurt to any person by doing any act so rashly or negligently as to endangerhuman life, or the personal safety of others, shall be punished with imprisonment of either descriptionfor a term which may extend to two years, or with fine which may extend to one thousand rupees, orwith both.

xxviii 312. Causing miscarriage.Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused ingood faith for the purpose of saving the life of the woman, be punished with imprisonment of eitherdescription for a term which may extend to three years, or with fine, or with both; and, if the womanbe quick with child, shall be punished with imprisonment of either description for a term which mayextend to seven years, and shall also be liable to fine.Explanation.- A woman who causes herself to miscarry, is within the meaning of this section.

313. Causing miscarriage without woman’s consentWhoever commits the offence defined in the last preceding section without the consent of the woman,whether the woman is quick with child or not, shall be punished with imprisonment for life, or withimprisonment of either description for a term which may extend to ten years, and shall also be liable tofine.

314. Death caused by act done with intent to cause miscarriageWhoever, with intent to cause the miscarriage of a woman with child, does any act which causes thedeath of such woman, shall be punished with imprisonment of either description for a term which mayextend to ten years, and shall also be liable to fine;

if act done without woman’s consent- and if the act is done without the consent of the woman, shallbe punished wither with imprisonment for life or with the punishment above mentioned.Explanation- it is not essential to this offence that the offender should know that the act is likely tocause death.

xxix 511. Punishment for attempting to commit offences punishable with imprisonment for life or otherimprisonmentWhoever attempts to commit an offence punishable by this Code with imprisonment for life orimprisonment, or to cause such an offence to be committed, and in such attempt does any act towardsthe commission of the offence, shall, where no express provision is made by this Code for the punishment



of such attempt, be punished with imprisonment of any description provided for the offence, for a termwhich may extend to one-half of the imprisonment for life or, as the case may be, one-half of thelongest term of imprisonment provided for that offence, or with such fine as is provided for the offence,or with both.

xxx 370. Buying or disposing of any person as a slaveWhoever imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, receivesor detains against his will any person as a slave, shall be punished with imprisonment of either descriptionfor a term which may extend to seven years, and shall also be liable to fine.

371. Habitual dealing in slavesWhoever habitually imports, exports, removes, buys, sells, traffics or deals in slaves, shall be punishedwith imprisonment for life or with imprisonment of either description for a term not exceeding tenyears and shall also be liable to fine.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989xxxi 3. Punishments for offences of atrocities -

(1) Whoever, not being a member or a Scheduled Caste or a Scheduled Tribe, -(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxioussubstance;(ii) acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or aScheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in hispremises or neighbourhood;(iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe orparades him naked or with painted face or body or commits any similar act which is derogatory tohuman dignity;(iv) wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competentauthority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe or gets the land allottedto him transferred;(v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land orpremises or interferes with the enjoyment of his rights over any land, premises or water;(vi) compels or entices a member of a Scheduled Caste or a Scheduled Tribe to do ‘begar’ or other similarforms of forced or bonded labour other than any compulsory service for public purposes imposed byGovernment;(vii) forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote toa particular candidate or to vote in a manner other than that provided by law;(viii) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a memberof a Scheduled Caste or a Scheduled Tribe;(ix) gives any false or frivolous information to any public servant, and thereby causes such publicservant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or aScheduled Tribe;(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or aScheduled Tribe in any place within public view;(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe withintent to dishonour or outrage her modesty;(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a ScheduledTribe and uses that position to exploit her sexually to which she would not have otherwise agreed;(xiii) corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by membersof the Scheduled Caste or the Scheduled Tribes so as to render it less fit for the purpose for which it isordinarily used;(xiv) denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to aplace of public resort or obstructs such member so as to prevent him from using or having access to aplace of public resort to which other members of public or any section thereof have a right to use oraccess to;(xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or



other place of residence, shall be punishable with imprisonment for a term which shall not be less thansix months but which may extend to five years and with fine.(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—(i) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he willthereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offencewhich is capital by the law for the time being in force shall be punished with imprisonment for life andwith fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted andexecuted in consequence of such false or fabricated evidence, the person who gives or fabricates suchfalse evidence, shall be punished with death;(ii) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he willthereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offencewhich is not capital but punishable with imprisonment for a term of seven years or upwards, shall bepunishable with imprisonment for a term which shall not be less than six months but which mayextend to seven years or upwards and with fine;(iii) commits mischief by fire or any explosive substance intending to cause or knowing it to be likelythat he will thereby cause damage to any property belonging to a member of a Scheduled Caste or aScheduled Tribe, shall be punishable with imprisonment for a term which shall not be less than sixmonths but which may extend to seven years and with fine;(iv) commits mischief by fire or any explosive substance intending to cause or knowing it to be likelythat he will thereby cause destruction of any building which is ordinarily used as a place of worship oras a place for human dwelling or as a place for custody of the property by a member of a ScheduledCaste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine;(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for aterm of ten years or more against a person or property on the ground that such person is a member ofa Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishablewith imprisonment for life and with fine;(vi) knowingly or having reason to believe that an offence has been committed under this Chapter,causes any evidence of the commission of that offence to disappear with the intention of screening theoffender from legal punishment, or with that intention gives any information respecting the offencewhich he knows or believes to be false, shall be punishable with the punishment provided for thatoffence; or(vii) being a public servant, commits any offence under this section, shall be punishable withimprisonment for a term which shall not be less than one year but which may extend to the punishmentprovided for that offence.

The Juvenile Justice (Care and Protection of Children) Act, 2000xxxii 2. Definitions

In this Act, unless the context otherwise requires,-(a) “advisory board” means a Central or a State advisory board or a district and city level advisoryboard, as the case may be, constituted under section 62;(aa) “adoption” means the process through which the adopted child is permanently separated from hisbiological parents and becomes the legitimate child of his adoptive parents with all the rights, privilegesand responsibilities that are attached to the relationship(b) “begging” means -(i) soliciting or receiving alms in a public place or entering into any private premises for the purpose ofsoliciting or receiving alms, whether under any pretence;(ii) exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound, injury,deformity or disease, whether of himself or of any other person or of an animal;(c) “Board” means a Juvenile Justice Board constituted under section 4;(d) “child in need of care and protection” means a child -(i) who is found without any home or settled place or abode and without any ostensible means ofsubsistence,(ia) who is found begging, or who is either a street child or a working child,(ii) who resides with a person (whether a guardian of the child or not) and such person -(a) has threatened to kill or injure the child and there is a reasonable likelihood of the threat beingcarried out, or



(b) has killed, abused or neglected some other child or children and there is a reasonable likelihood ofthe child in question being killed, abused or neglected by that person,(iii) who is mentally or physically challenged or ill children or children suffering from terminal diseasesor incurable diseases having no one to support or look after,(iv) who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercisecontrol over the child,(v) who does not have parent and no one is willing to take care of or whose parents have abandoned orsurrendered him or who is missing and run away child and whose parents cannot be found after reasonableinquiry,(vi) who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuseor illegal acts,(vii) who is found vulnerable and is likely to be inducted into drug abuse or trafficking,(viii) who is being or is likely to be abused for unconscionable gains,(ix) who is victim of any armed conflict, civil commotion or natural calamity;(e) “children’s home” means an institution established by a State Government or by voluntary organisationand certified by that Government under section 34;(f) “Committee” means a Child Welfare Committee constituted under section 29;(g) “competent authority” means in relation to children in need of care and protection a Committeeand in relation to juveniles in conflict with law a Board;(h) “fit institution” means a governmental or a registered non-governmental organisation or a voluntaryorganisation prepared to own the responsibility of a child and such organisation is found fit by theState Government on the recommendation of the competent authority(i) “fit person” means a person, being a social worker or any other person, who is prepared to own theresponsibility of a child and is found fit by the competent authority to receive and take care of thechild;(j) “guardian”, in relation to a child, means his natural guardian or any other person having the actualcharge or control over the child and recognised by the competent authority as a guardian in course ofproceedings before that authority;(k) “juvenile” or “child” means a person who has not completed eighteenth year of age;(l) “juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and hasnot completed eighteenth year of age as on the date of commission of such offence;(m)[***](n) “narcotic drug” and “psychotropic substance” shall have the meanings respectively assigned tothem in the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985);(o) “observation home” means a home established by a State Government or by a voluntary organisationand certified by that State Government under section 8 as an observation home for the juvenile inconflict with law;(p) “offence” means an offence punishable under any law for the time being in force;(q) “place of safety” means any place or institution (not being a police lock-up or jail), the personincharge of which is willing temporarily to receive and take care of the juvenile and which, in theopinion of the competent authority, may be a place of safety for the juvenile;(r) “prescribed” means prescribed by rules made under this Act;(s) “probation officer” means an officer appointed by the State Government as a probation officer underthe Probation of Offenders Act, 1958 (20 of 1958);(t) “public place” shall have the meaning assigned to it in the Immoral Traffic (Prevention) Act, 1956(104 of 1956);(u) “shelter home” means a home or a drop-in-centre set up under section 37;(v) “special home” means an institution established by a State Government or by a voluntary organisationand certified by that Government under section 9;(w) “special juvenile police unit” means a unit of the police force of a State designated for handling ofjuveniles or children under section 63;(x) “State Government”, in relation to a Union territory, means the Administrator of that Union territoryappointed by the President under article 239 of the Constitution;(y) all words and expressions used but not defined in this Act and defined in the Code of CriminalProcedure, 1973 (2 of 1974), shall have the meanings respectively assigned to them in that Code.



xxxiii 29. Child Welfare Committee.(1) The State Government may, within a period of one year from the date of commencement of theJuvenile Justice (Care and Protection of Children) Amendment Act, 2006, by notification in the OfficialGazette, constitute for every district, one or more Child Welfare Committees for exercising the powersand discharge the duties conferred on such Committees in relation to child in need of care and protectionunder this Act.(2) The Committee shall consist of a Chairperson and four other members as the State Government maythink fit to appoint, of whom at least one shall be a woman and another, an expert on matters concerningchildren.(3) The qualifications of the Chairperson and the members, and the tenure for which they may beappointed shall be such as may be prescribed.(4) The appointment of any member of the Committee may be terminated, after holding inquiry, by theState Government, if —(i) he has been found guilty of misuse of power vested under this Act;(ii) he has been convicted of an offence involving moral turpitude, and such conviction has not beenreversed or he has not been granted full pardon in respect of such offence;(iii) he fails to attend the proceedings of the Committee for consecutive three months without any validreason or he fails to attend less than three-fourths of the sittings in a year.(5) The Committee shall function as a Bench of Magistrates and shall have the powers conferred by theCode of Criminal Procedure, 1973 (2of 1974) on a Metropolitan Magistrate or, as the case may be, aJudicial Magistrate of the first class.

30. Procedure, etc., in relation to Committee.(1) The Committee shall meet at such times and shall observe such rules of procedure in regard to thetransaction of business at its meetings, as may be prescribed.(2) A child in need of care and protection may be produced before an individual member for beingplaced in safe custody or otherwise when the Committee is not in session.(3) In the event of any difference of opinion among the members of the Committee at the time of anyinterim decision, the opinion of the majority shall prevail but where there is no such majority theopinion of the Chairperson shall prevail.(4) Subject to the provisions of sub-section (1), the Committee may act, notwithstanding the absenceof any member of the Committee, and no order made by the Committee shall be invalid by reason onlyof the absence of any member during any stage of the proceeding.

31. Powers of Committee.(1) The Committee shall have the final authority to dispose of cases for the care, protection, treatment,development, and rehabilitation of the children as well as to provide for their basic needs and protectionof human rights.(2) Where a Committee has been constituted for any area, such Committee shall, notwithstandinganything contained in any other law for the time being in force but save as otherwise expressly providedin this Act, have the power to deal exclusively with all proceedings under this Act relating to childrenin need of care and protection.

32. Production before Committee.(1) Any child in need of care and protection may be produced before the Committee by one of thefollowing persons—(i) any police officer or special juvenile police unit or a designated police officer;(ii) any public servant;(iii) Child Line, a registered voluntary organisation or by such other voluntary organisation or anagency as may be recognised by the State Government;(iv) any social worker or a public-spirited citizen authorised by the State Government; or(v) by the child himself.Provided that the child shall be produced before the Committee without any loss of time but within aperiod of twenty-four hours excluding the time necessary for the journey.



(2) The State Government may make rules consistent with this Act to provide for the manner of makingthe report to the Committee and the manner of sending and entrusting the child to a children’s homepending the inquiry.

33. Inquiry.(1) On receipt of a report under section 32, the Committee shall hold an inquiry in the manner and theCommittee, on its own or on the report from any person or agency as mentioned in sub-section (1) ofsection 32, may pass an order to send the child to the children’s home for speedy inquiry by a socialworker or child welfare officer.(2) The inquiry under this section shall be completed within four months of the receipt of the order orwithin such shorter period as may be fixed by the Committee:Provided that the time for the submission of the inquiry report may be extended by such period as theCommittee may, having regard to the circumstances and for the reasons recorded in writing, determine.(3) The State government shall review the pendency of cases of the Committee at every six months, andshall direct the Committee to increase the frequency of its sitting or may cause the constitution ofadditional Committees.(4) After the completion of the inquiry, if, the Committee is of the opinion that the said child has nofamily or ostensible support or is in continued need of care and protection, it may allow the child toremain to children’s home or shelter home till suitable rehabilitation is found for him or till he attainsthe age of eighteen years.

34. Children’s homes.(1) The State Government may establish and maintain, either by itself or in association with thevoluntary organisations, children’s homes in every district or group of districts, as the case may be, forthe reception of the child in need of care and protection during the pendency of any inquiry andsubsequently for their care, treatment, education, training, development, and rehabilitation.(2) The State Government may, by rules made under this Act, provide for the management of children’shomes including the standards and the nature of services to be provided by them, and the circumstancesunder which, and the manner in which, the certification of a children’s home or recognition to avoluntary organisation may be granted or withdrawn.(3) Without prejudice to anything contained in any other law for the time being in force, all institutions,whether State Government run or those run by voluntary organizations for children in need of care andprotection shall, within a period of six months from the date of commencement of the Juvenile Justice(Care and Protection of Children) Amendment Act, 2006, be registered under this Act in such manner asmay be prescribed.

35. Inspection.(1) The State Government may appoint inspection committees for the children’s homes (hereinafterreferred to as the inspection committees) for the State, a district and city, as the case may be, for suchperiod and for such purposes as may be prescribed.(2) The inspection committee of a State, district or of a city shall consist of such number of representativesfrom the State Government, local authority, Committee, voluntary organisations, and such other medicalexperts and social workers as may be prescribed.

36. Social auditing.The Central Government or State Government may monitor and evaluate the functioning of the Children’shomes at such period and through such persons and institutions as may be specified by that Government.

37. Shelter homes.(1) The State Government may recognize, reputed and capable voluntary organisations and providethem assistance to set up and administer as many shelter homes for juveniles or children as may berequired.(2) The shelter homes referred in sub-section (1) shall function as drop-in-centers for the children inneed of urgent support who have been brought to such homes through such persons as are referred toin sub-section (1) of section 32.(3) As far as possible, the shelter homes shall have such facilities as may be prescribed by the rules.



38. Transfer.(1) If, during the inquiry, it is found that the child hails from the place outside the jurisdiction of theCommittee, the Committee shall order the transfer of the child to the competent child authority havingjurisdiction over the place of residence of the child.(2) Such juvenile or the child shall be escorted by the staff of the home in which he is lodged originally.(3) The State Government may make rules to provide for the traveling allowance to be paid to the child.

39. Restoration.(1) Restoration of and protection to a child shall be the prime objective of any children’s home or theshelter home.(2) The children’s home or a shelter home, as the case may be, shall take such steps as are considerednecessary for the restoration of and protection to a child deprived of his family environment temporarilyor permanently where such child is under the care and protection of a children’s home or a shelterhome, as the case may be.(3) The Committee shall have the powers to restore any child in need of care and protection to hisparent, guardian, fit person or fit institution, as the case may be, and give them suitable directions.Explanation.—For the purposes of this section ‘restoration of and protection of a child’ means restorationto—(a) parents;(b) adopted parents;(c) foster parents;(d) guardian;(e) fit person; or(f) fit institution.

40. Process of rehabilitation and social reintegration.The rehabilitation and social reintegration of a child shall begin during the stay of the child in achildren’s home or special home, and the rehabilitation and social reintegration of children shall becarried out alternatively by (i) adoption, (ii) foster care, (iii)sponsorship, and (iv) sending the child toan after-care organisation.

41. Adoption.(1) The primary responsibility for providing care and protection to children shall be that of his family.(2) Adoption shall be resorted to for the rehabilitation of the children who are orphaned, abandoned,or surrendered through such mechanism as may be prescribed.(3) In keeping with the provisions of the various guidelines for adoption issued from time to time bythe State Government, the Board shall be empowered to give children in adoption and carry out suchinvestigations as are required for giving children in adoption in accordance with the guidelines issuedby the State Government from time to time in this regard.(4) The children’s homes or the State Government-run institutions for orphans shall be recognised as anadoption agencies both for scrutiny and placement of such children for adoption in accordance with theguidelines issued under sub-section (3).(5) No child shall be offered for adoption—(a) until two members of the Committee declare the child legally free for placement, in the case ofabandoned children,(b) till the two months period for reconsideration by the parent is over in the case of surrenderedchildren, and(c) without his consent in the case of a child who can understand and express his consent.(6) The Court may allow a child to be given in adoption—(a) to a person irrespective of marital status or;(b) to parents to adopt a child of same sex irrespective of the number of living biological sons ordaughters; or(c) to childless couples.



42. Foster care.(1) The foster care may be used for temporary placement of those infants who are ultimately to begiven for adoption.(2) In foster care, the child may be placed in another family for a short or extended period of time,depending upon the circumstances where the child’s own parents usually visit regularly and eventuallyafter the rehabilitation, where the children may return to their own homes.(3) The State Government may make rules for the purposes of carrying out the scheme of foster careprogramme of children.

43. Sponsorship.(1) The sponsorship programme may provide supplementary support to families, to children’s homes,and to special homes to meet medical, nutritional, educational and other needs of the children with aview to improving their quality of life.(2) The State Government may make rules for the purposes of carrying out various schemes of sponsorshipof children, such as individual-to-individual sponsorship, group sponsorship, or community sponsorship.

44. After-care organization .The State Government may, by rules made under this Act, provide—(a) for the establishment or recognition of after-care organizations and the functions that may beperformed by them under this Act;(b) for a scheme of after-care programme to be followed by such after-care organisations for the purposeof taking care of juveniles or the children after they leave special homes, children homes, and for thepurpose of enabling them to lead an honest, industrious, and useful life;(c) for the preparation or submission of a report by the probation officer or any other officer appointedby that Government in respect of each juvenile or the child prior to his discharge from a special home,children’s home, regarding the necessity and nature of after-care of such juvenile or of a child, theperiod of such after-care, supervision thereof, and for the submission of report by the probation officeror any other officer appointed for the purpose, on the progress of each juvenile or the child;(d) for the standards and the nature of services to be maintained by such after-care organisations;(e) for such other matters as may be necessary for the purpose of carrying out the scheme of after-careprogramme for the juvenile or the child:Provided that any rule made under this section shall not provide for such juvenile or child to stay in theafter-care organisation for more than three years;Provided further that a juvenile or child over seventeen years of age but less than eighteen years of agewould stay in the after-care organisation till he attains the age of twenty years.

45. Linkages and co-ordination.The State Government may make rules to ensure effective linkages between various governmental, non-governmental, corporate, and other community agencies for facilitating the rehabilitation and socialreintegration of the child.

xxxiv 23. Punishment for cruelty to juvenile or child.Whoever, having the actual charge of, or control over, a juvenile or the child, assaults, abandons,exposes, or willfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed,or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physicalsuffering, shall be punishable with imprisonment for a term which may extend to six months, or fine,or with both.

xxxv 27. Special offencesThe offences punishable under sections 23, 24, 25 and 26 shall be cognizable.

xxxvi 24. Employment of juvenile or child for begging(1) Whoever employs or uses any juvenile or the child for the purpose or causes any juvenile to begshall be punishable with imprisonment for a term which may extend to three years and shall also beliable to fine.(2) Whoever, having the actual charge of, or control over, a juvenile or the child abets the commission



of the offence punishable under sub-section (1), shall be punishable with imprisonment for a termwhich may extend to one year and shall also be liable to fine.

xxxvii27. Special offencesThe offences punishable under sections 23, 24, 25 and 26 shall be cognizable.

xxxviii 25. Penalty for giving intoxicating drug or psychotropic substance to juvenile or child.Whoever gives, or causes to be given, to any juvenile or the child any intoxicating liquor in a publicplace or any narcotic drug or psychotropic substance, except upon the order of a duly qualified medicalpractitioner or in case of sickness, shall be punishable with imprisonment for a term which may extendto three years and shall also be liable to fine.

xxxix 26. Exploitation of juvenile or child employee.Whoever ostensibly procures a juvenile or the child for the purpose of any hazardous employment,keeps him in bondage, and withholds his earnings or uses such earning for his own purposes shall bepunishable with imprisonment for a term which may extend to three years and shall also be liable tofine.

xl 27. Special offencesThe offences punishable under sections 23, 24, 25 and 26 shall be cognizable.

xli 28. Alternative punishment.Where an act or omission constitutes an offence punishable under this Act and also under any otherCentral or State Act, then, notwithstanding anything contained in any law for the time being in force,the offender found guilty of such offences shall be liable to punishment only under such Act as providesfor punishment which is greater in degree.

The Prevention of Corruption Act, 1988xlii Section 2(c) ‘Public servant’ means—

(i) any person in the service or pay of the Government or remunerated by the Government by fees orcommission for the performance of any public duty;(ii) any person in the service or pay of a local authority;(iii) any person in the service or pay of a corporation established by or under a Central, Provincial orState Act, or an authority or a body owned or controlled or aided by the Government or a Governmentcompany as defined in section 617 of the Companies Act, 1956 (1 of 1956);(iv) any Judge, including any person empowered by law to discharge, whether by himself or as amember of any body of persons, any adjudicatory functions;(v) any person authorised by a court of justice to perform any duty, in connection with the administrationof justice, including a liquidator, receiver or commission appointed by such court;(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or reportby court of justice or by a competent public authority;(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintainor revise an electoral roll or to conduct an election or part of an election;(viii) any person who holds an office by virtue of which he is authorised or required to perform anypublic duty;(ix) any person who is the president, secretary or other office-bearer of a registered co-operativesociety engaged in agriculture, industry, trade or banking, receiving or having received any financialaid from the Central Government or a State Government or from any corporation established by orunder a Central, Provincial or State Act, or any authority or body owned or controlled or aided by theGovernment or a Government company as defined in section 617 of the Companies Act, 1956 (1 of1956);(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatevername called, or a member of any selection committee appointed by such Commission or Board for theconduct of any examination or making any selection on behalf of such Commission or Board;(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer orany other teacher or employee, by whatever designation called, of any University and any person whose



services have been availed of by a University or any other public authority in connection with holdingor conducting examinations;(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural orother institution, in whatever manner established, receiving or having received any financial assistancefrom the Central Government or any State Government, or local or other public authority.Explanation 1 —Persons falling under any of the above sub-clauses are public servants, whether appointedby the Government or not.Explanation 2 —Wherever the words ‘public servant’ occur, they shall be understood of every personwho is in actual possession of the situation of a public servant, whatever legal defect there may be inhis right to hold that situation. 2

xliii Section 7. Public servant taking gratification other than legal remuneration in respect of an official act.Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attemptsto obtain from any person, for himself or for any other person, any gratification whatever, other thanlegal remuneration, as a motive or reward for doing or forbearing to do any official act or for showingor forbearing to show, in the exercise of his official functions, favour or disfavour to any person or forrendering or attempting to render any service or disservice to any person, with the Central Governmentor any State Government or Parliament or the Legislature of any State or with any local authority,corporation or Government company referred to in clause (c) of section 2, or with any public servant,whether named or otherwise, shall be punishable with imprisonment which shall be not less than sixmonths but which may extend to five years and shall also be liable to fine.Explanation.—(a) ‘Expecting to be a public servant’ If a person not expecting to be in office obtains a gratification bydeceiving others into a belief that he is about to be in office, and that he will when serve them, be maybe guilty of cheating, but he is not guilty of the offence defined in this section.(b) ‘Gratification’ The word ‘gratification’ is not restricted to pecuniary gratifications or to gratificationsestimable in money(c) ‘Legal remuneration’ The words ‘legal remuneration’ are not restricted to remuneration that a publicservant can lawfully demand, but include all remuneration which he is permitted by the Government orthe organisation, which he serves, to accept.(d) ‘A motive or reward for doing.’ A person who receives a gratification as a motive or reward for doingwhat he does not intend or is not in a position to do, or has not done, comes within this expression(e) Where a public servant induces a person erroneously to believe that his influence with the Governmenthas obtained a title for that person and thus induces that person to give the public servant, money orany other gratification as a reward for this service, the public servant has committed an offence underthis section.

xliv Section 8. Taking gratification, in order, by corrupt or illegal means, to influence public servant.Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself orfor any other person, any gratification whatever as a motive or reward for inducing, by corrupt orillegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act,or in the exercise of the official functions of such public servant to show favour or disfavour to anyperson, or to render or attempt to render any service or disservice to any person with the CentralGovernment or any State Government or Parliament or the Legislature of any State or with any localauthority, corporation or Government company referred to in clause (c) of section 2, or with any publicservant, whether named or otherwise, shall be punishable with imprisonment for a term which shall benot less than six months but which may extend to five years and shall also be liable to fine.

xlv Section 9. Taking gratification, for exercise of personal influence with public servant.Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself orfor any other person, any gratification whatever as a motive or reward for inducing, by the exercise ofpersonal influence, any public servant, whether named or otherwise, to do or to forbear to do anyofficial act, or in the exercise of the official functions of such public servant to show favour or disfavourto any person, or to render or attempt to render any service or disservice to any person with the CentralGovernment or any State Government or Parliament or the Legislature of any State or with any localauthority, corporation or Government company referred to in clause (c) of section 2, or with any public



servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall benot less than six months but which may extend to five years and shall also be liable to fine.

xlvi Section 10. Punishment for abetment by public servant of offences defined in section 8 or 9.Whoever, being a public servant, in respect of whom either of the offences defined in section 8 orsection 9 is committed, abets the offence, whether or not that offence is committed in consequence ofthat abetment, shall be punishable with imprisonment for a term which shall be not less than sixmonths but which may extend to five years and shall also be liable to fine.

xlvii Section 11. Public servant obtaining valuable thing, without consideration from person concerned inproceeding or business transacted by such public servant .Whoever, being a public servant, accepts or obtains or agrees to accept or attempts to obtain forhimself, or for any other person, any valuable thing without consideration, or for a consideration whichhe knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely tobe concerned in any proceeding or business transacted or about to be transacted by such public servant,or having any connection with the official functions of himself or of any public servant to whom he issubordinate, or from any person whom he knows to be interested in or related to the person so concerned,shall be punishable with imprisonment for a term which shall be not less than six months but whichmay extend to five years and shall also be liable to fine.

xlviii 12.Punishment for abetment of offences defined in section 7 or 11.Whoever abets any offence punishable under section 7 or section 11 whether or not that offence iscommitted in consequence of that abetment, shall be punishable with imprisonment for a term whichshall be not less than six months but which may extend to five years and shall also be liable to fine.

xlix Section 13. Criminal misconduct by a public servant(1) A public servant is said to commit the offence of criminal misconduct, —(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person forhimself or for any other person for himself or for any other person any gratification other than legalremuneration as a motive or reward such as is mentioned in section 7; or(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for anyother person, any valuable thing without consideration or for a consideration which he knows to beinadequate from any person whom he knows to have been, or to be, or to be likely to be concerned inany proceedings or business transacted or about to be transacted by him, or having any connectionwith the official functions of himself or of any public servant to whom he is subordinate, or from anyperson whom he knows to be interested in or related to the person so concerned; or(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any propertyentrusted to him or under his control as a public servant or allows any other person so to do; ord) if he,— (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thingor pecuniary advantage; or(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuablething or pecuniary advantage; or(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniaryadvantage without any public, interest; or(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office,been in possession for which the public servant cannot satisfactorily account, of pecuniary resources orproperty disproportionate to his known sources of income.Explanation.—For the purposes of this section, ‘known sources of income’ means income received fromany lawful source and such receipt has been intimated in accordance with the provisions of any law,rules or orders for the time being applicable to a public servant.(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for aterm which shall be not less than one year but which may extend to seven years and shall also be liableto fine.



The Indian Penal Code, 1860l 360. Kidnapping from India

Whoever conveys any person beyond the limits of India without the consent of that person, or of someperson legally authorized to consent on behalf of that person is said to kidnap that person from India.

363. Punishment for kidnappingWhoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonmentof either description for a term which may extend to seven years, and shall also be liable to fine.

li 366B. Importation of girl from foreign countryWhoever imports into India from any country outside India or from the State of Jammu and Kashmirany girl under the age of twenty-one years with intent that she may be, or knowing it to be likely thatshe will be, forced or seduced to illicit intercourse with another person, shall be punishable withimprisonment which may extend to ten years, and shall also be liable to fine.

The Citizenship Act, 1955lii 10. Deprivation of citizenship

(1) A citizen of India who is such by naturalisation or by virtue only of clause (c) of article 5 of theConstitution or by registration otherwise than under clause (b)(ii) of article 6 of the Constitution orclause (a) of sub-section (1) of section 5 of this Act, shall cease to be a citizen of India, if he is deprivedof that citizenship by an order of the Central Government under this section.(2) Subject to the provisions of this section, the Central Government may, by order, deprive any suchcitizen of Indian citizenship, if it is satisfied that-(a) …(b) …(c) …(d) that citizen has, within five years after registration or naturalization, been sentenced in anycountry to imprisonment for a term of not less than two years;(e) …

The Foreigners Act, 1946liii 3. Power to make orders -

(1) The Central Government may by order make provision, either generally or with respect to all foreignersor with respect to any particular foreigner or any prescribed class or description of foreigner, forprohibiting, regulating or restricting the entry of foreigners into India or, their departure therefrom ortheir presence or continued presence therein.(2) In particular and without prejudice to the generality of the foregoing power, orders made under thissection may provide that the foreigner—(a) shall not enter India or shall enter India only at such times and by such route and at such port orplace and subject to the observance of such conditions on arrival as may be prescribed;(b) shall not depart from India, or shall depart only at such times and by such route and from such portor place and subject to the observance of such conditions on departure as may be prescribed;(c) shall not remain in India, or in any prescribed area therein;(cc) shall, if he has been required by order under this section not to remain in India, meet from anyresources at his disposal the cost of his removal from India and of his maintenance therein pendingsuch removal;(d) shall remove himself to, and remain in such area in India as may be prescribed;(e) shall comply with such conditions as may be prescribed or specified-(i) requiring him to reside in a particular place;(ii) imposing any restrictions on his movements;(iii) requiring him to furnish such proof of his identity and to report such particulars to such authorityin such manner and at such time and place as may be prescribed or specified;(iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimensof his handwriting and signature to such authority and at such time and place as may be prescribed orspecified;



(v) requiring him to submit himself to such medical examination by such authority and at such timeand place as may be prescribed or specified;(vi) prohibiting him from association with persons of a prescribed or specified description;(vii) prohibiting him from engaging in activities of a prescribed or specified description;(viii) prohibiting him from using or possessing prescribed or specified articles;(ix) otherwise regulating his conduct in any such particular as may be prescribed or specified;(f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to theenforcement of, any or all prescribed or specified restrictions or conditions;(g) shall be arrested and detained or confined; and may make provision for any matter which is to be ormay be prescribed and for such incidental and supplementary matters as may, in the opinion of theCentral Government, be expedient or necessary for giving effect to this Act.(3)Any authority prescribed in this behalf may with respect to any particular foreigner make ordersunder clause (c) or clause(f) of sub-section (2).13. Attempts, etc., to contravene the provisions of this Act, etc-(1) Any person who attempts to contravene, or abets or attempts to abet, or does any act preparatoryto, a contravention of, the provisions of this Act or of any order made or direction given thereunder, orfails to comply with any direction given in pursuance of any such order, shall be deemed to havecontravened the provisions of this Act.(2) Any person who, knowing or having reasonable cause to believe that any other person has contravenedthe provisions of this Act or of any order made or direction given thereunder, gives that other personany assistance with intent thereby to prevent, hinder or otherwise interfere with his arrest, trial orpunishment for the said contravention shall be deemed to have abetted that contravention.(3) The master of any vessel or the pilot of any aircraft, as the case may be, by means of which anyforeigner enters or leaves India in contravention of any order made under, or direction given in pursuanceof, section 3 shall, unless he proves that he exercised all due diligence to prevent the said contravention,be deemed to have contravened this Act.14. Penalty for contravention of provisions of the Act, etc- Whoever—(a) remains in any area in India for a period exceeding the period for which the visa issued to him;(b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay inIndia or any part thereunder;(c) contravenes the provisions of this Act or of any order made there under or any direction given inpursuance of this Act or such order for which no specific punishment is provided under this Act, shallbe punished with imprisonment for a term which may extend to five years and shall also be liable tofine; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of section 3, hisbond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause tothe satisfaction of the convicting Court why such penalty should not be paid by him.

The Immigration (Carrier’s Liability) Act, 2000liv 3. Liability of carriers for passengers brought into India.

Where the competent authority is of the opinion that any carrier has brought a person in contraventionof the provisions of the Passport (Entry into India) Act, 1920 (34 of 1920) and rules made there-underinto India, he may by order impose a penalty of rupees one lakh on such carrier:Provided that no order shall be passed without giving the carrier an opportunity of being heard in the matter.

lv 2. Definitions.(1) In this Act, unless the context otherwise requires,—(a) ‘carrier’ means a person who is engaged in the business of transporting passengers by water or airand includes any association of persons, whether incorporated or not, by whom the aircraft or the shipis owned or chartered;

The Indian Passport (Entry into India) Act, 1920lvi 3. Power to make rules.

(1) The Central Government may make rules requiring that persons entering India shall be in possessionof passports, and for all matters ancillary or incidental to that purpose.(2) Without prejudice to the generality of the foregoing power such rules may —



(a) prohibit the entry into India or any part thereof of any person who has not in his possession apassport issued to him;(b) prescribe the authorities by whom passports must have been issued or renewed, and the conditionswith which they must comply, for the purposes of this Act; and(c) provide for the exemption, either absolutely or on any condition, of any person or class of personsfrom any provision of such rules.(3) Rules made under this section may provide that any contravention thereof or of any order issuedunder the authority of any such rule shall be punishable with imprisonment for a term which mayextend to three months, or with fine or with both.

lvii 4. Power of arrest.(l) Any officer of police, not below the rank of a sub-inspector, and any officer of the Customs Departmentempowered by a general or special order of the Central Government in this behalf may arrest withoutwarrant any person who has contravened or against whom a reasonable suspicion exists that he hascontravened any rule or order made under section 3.(2) Every officer making an arrest under this section shall, without unnecessary delay, take or send theperson arrested before a Magistrate having jurisdiction in the case or to the officer in charge of thenearest police-station and the provisions of section 61 of the Code of Criminal Procedure, 1898, (5 of1898) shall, so far as may be apply in the case of any such arrest.

lviii 3. Passport or travel document for departure from IndiaNo person shall depart from, or attempt to depart from India, unless he holds in this behalf a validpassport or travel document.Explanation.—For the purposes of this section,—(a) “passport” includes a passport which having been issued by or under the authority of the Governmentof a foreign country satisfies the conditions prescribed under the Passport (Entry into India) Act, 1920(34 of 1920), in respect of the class of passports to which it belongs;(b) “travel document” includes a travel document which having been issued by or under the authorityof the Government of a foreign country satisfies the conditions prescribed.12. Offences and penalties -(1) Whoever—(a) contravenes the provisions of section 3; or(b) knowingly furnishes any false information or suppresses any material information with a view toobtaining a passport or travel document under this Act or without lawful authority alters or attemptsto alter or causes to alter the entries made in a passport or travel document; or(c) fails to produce for inspection his passport or travel document (whether issued under this Act ornot) when called upon to do so by the prescribed authority; or(d) knowingly uses a passport or travel document issued to another person; or(e) knowingly allows another person to use a passport or travel document issued to him; shall bepunishable with imprisonment for a term which may extend to two years or with fine which mayextend to five thousand rupees or with both.(1A) Whoever, not being a citizen of India,—(a) makes an application for a passport or obtains a passport by suppressing information about hisnationality, or(b) holds a forged passport or any travel document, shall be punishable with imprisonment for a termwhich shall not be less than one year but which may extend to five years and with fine which shall notbe less than ten thousand rupees but which may extend to fifty thousand rupees.(2) Whoever abets any offence punishable under sub-section (1) or subsection (1A)] shall, if the actabetted is committed in consequence of the abetment, be punishable with the punishment provided inthat sub-section for that offence.(3) Whoever contravenes any condition of a passport or travel document or any provision of this Act orany rule made there under for which no punishment is provided elsewhere in this Act shall be punishablewith imprisonment for a term which may extend to three months or with fine which may extend to fivehundred rupees or with both.(4) Whoever, having been convicted of an offence under this Act, is again convicted of an offence underthis Act shall be punishable with double the penalty provided for the latter offence.



Chapter 3

CommercialSexual Exploitationand Human Trafficking



3.1 Introduction

This chapter attempts to identify the various sections of the Indian Penal Code and other criminal lawprovisions that can be invoked in crimes of trafficking. The chapter is divided into various sub-chapterson the basis of the purpose for which trafficking has been done. They are:

3.1 Introduction3.2 Special Provisions Relating to Commercial Sexual Exploitation of Women3.3 Special Provisions relating to Commercial Sexual Exploitation of Children3.4 Sexual Exploitation due to Cultural Practices3.5 Sex Tourism and Trafficking3.6 Special Provisions Relating to Pornography and Trafficking

3.2 Special Provisions Relating to Commercial Sexual Exploitation of Women

This sub-chapter focuses on trafficking for the purpose of Commercial Sexual Exploitation (CSE) andspecifically offences against adult women. However, it must be kept in mind that many provisions areapplicable to children as well. The provisions dealt with include those from the Indian Penal Code andThe Immoral Traffic (Prevention) Act, 1956 (ITPA). The provisions discussed below must be utilized inaddition to the General Provisions in Criminal Law with Respect to Human Trafficking (Chapter 2).They must also be read with specific sub-chapters of this Chapter that may be applicable.

For example, in the case of trafficking for commercial sexual exploitation, Rape may be coupled withKidnapping, Wrongful Confinement, Criminal Conspiracy, and Common Intention, etc. The ITPA addressesissues primarily associated with commercial sexual exploitation and trafficking for that purpose.


The IPC has a number of sections dealing with numerous offences linked to commercial sexual exploitationof women. The Table below gives a brief list. This is followed by a short discussion under each offence.

A General Provisions of Criminal Law Refer to Chapter 2B Rape 375, 376C Unnatural offences 377D Assault/ Criminal force/ act to dishonour/

outrage modesty, defamation 354, 355, 509, 500

A. General Provisions of Criminal LawThese include a wide range of general offences/ provisions which can be used along with specific provisionsin this Chapter wherever relevant. The provisions are listed and detailed in Chapter 2.

B. Rape (375)In cases of trafficking for commercial sexual exploitation, the provisions dealing with rape can beeffectively invoked. The offence of rape requires sexual intercourse by a man with a woman, which isagainst her will or without her consent. The use of both these terms clearly indicates that a distinctionneeds to be drawn between them. If consent is obtained by any kind of deceit, it may amount to rape.Further, if the woman is under the age of 16, consent will become irrelevant (unless the man is herhusband and she is over 15) as it amounts to statutory rape. The offence of rape is punishable U/S. 376with imprisonment of either description for a minimum of seven years, and a maximum of ten years, butwhich may also be for life.



The Supreme Court (SC) has ordered compensation to be paid to the rape victim in many cases1. In DelhiDomestic Working Woman’s Forum v. Union of India2, the SC laid down parameters under which a caseof rape has to be tried by taking into consideration the plight of the victims during and after the trial.The judgment recognized inter alia the need for legal representation for the victim; laid down parametersabout the treatment of the victims in police stations; made it mandatory for the victim to get the helpof a social worker; made it obligatory to maintain the anonymity of the victim, etc.

Delay in lodging a complaint in a rape case does not raise inference that the case is false3. Delay inlodging the FIR is not material when properly explained4. A mere act of helpless resignation in theface of inevitable compulsions is not consent in law; and free consent involves a submission, butthe mere act of submission does not involve consent to exempt a man of charge of rape5.Corroboration is not a necessary element for conviction in a rape case6.

The Indian Evidence Act lays down an important presumption in rape cases under Section 114-Ai Thissection shifts the burden of proof on to the accused to prove that the woman had given herconsent.

A landmark judgment, as far as the offence of rape goes, has been State of Punjab v. Gurmit Singh7, inwhich the Supreme Court laid down the following parameters:

1. Delay in lodging the FIR is not material when properly explained.2. Testimony of the victim in cases of sexual assault are vital and unless there are compelling reasons

which necessitate looking for corroboration of her statement, the court should find no difficultyin convicting the accused on the victim’s testimony alone.

3. Trial of sexual offenses should be in camera and invariably by women judges wherever available.4. Court must refrain from making observations that cast aspersions on the character of the victim.5. Court is under an obligation to see that the victim is not unnecessarily harassed and humiliated in

cross-examination.

Under the provisions of Sec. 376 (2) if a police officer or a public servant, or a person/ staff being on themanagement of a jail/ remand home or hospital or children’s or women’s institution commits rape uponwomen/ children in his custody, the punishment is a minimum of ten years and a maximum of life.

The offence is cognizable, non-bailable, non-compoundable and triable by a Courtof Session.

C. Unnatural offences (377)

Unnatural offences especially against women and children are common in cases of trafficking and in thecourse of their being commercially sexually exploited. Again, it has to be remembered that it is not apassive agent who should be punished but the active agent or, in other words, the abusers who are to bepunished. There is no concept of consent as regards unnatural offences. A mere commission of the actwith or without consent attracts prosecution U/S. 377. The offence is punished with imprisonment forlife, or with imprisonment of either description for a term which may extend to ten years, and shall alsobe liable to fine.

1. Interim compensation ordered in Bodhisattwa Gautam v. Subhra Chakraborty AIR 1966 SC 922. Section 357 CriminalProcedure Code authorizes Courts to order convicts to pay compensation to victims.

2. Delhi Domestic Working Woman’s Forum v. Union of India (1995) 1 SCC 143. Karnel Singh v. State of Madhya Pradesh AIR 1995 SC 24724. State of Punjab v. Gurmit Singh AIR 1996 SC 13935. Rao Harnarain Singh, Sheoji Singh and other v. The State AIR 1958 Punj 1236. Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983 SC 7537. AIR 1996 SC 1393



Under this Section, the offence is cognizable, but no arrest can be made withouta warrant or without an order of a Magistrate, non-bailable, non-compoundable,and triable by a Magistrate of the First Class.

D. Assault or criminal force to woman with intent to outrage her modesty (354)ii

The ingredients of this Section are the use of criminal force, with the intent or knowledge that it islikely to outrage the modesty of a woman. Where trafficking is done for Commercial Sexual Exploitationor for Pornography, this Section may be used. The offender shall be punished with imprisonment ofeither description for a term which may extend to two years, or with fine, or with both.

The offence is cognizable, bailable, and compoundable with permission of thecourt before which any prosecution of such offence is pending, and triable by anyMagistrate.

Assault or criminal force with intent to dishonour person, otherwise than on grave provocation (355)iii

This Section may be effectively used to counter acts of molestation and even an attempt to forcedintercourse. All these acts tend to dishonour the person against whom it is committed. Recording ofpornography using force may also be covered under this Section. The offence under this Section shall bepunished withimprisonment of either description for a term which may extend to two years, or withfine, or with both.

The offence is non-cognizable, bailable, compoundable, and can be tried by anyMagistrate.

Word, gesture, or act intended to insult the modesty of a woman (509)iv

This Section can be used to combat pornography and even trafficking for the purpose of commercialsexual exploitation and also any other act that lowers the dignity of a woman. An offence under thissection is complete when there is an intention to insult the modesty of any woman coupled with sayingany words, making any sound or gesture, or exhibiting any object, intending that such word or soundshall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacyof such woman. The offence shall be punished with simple imprisonment for a term which may extendto one year, or with fine, or with both.

The offence is cognizable, bailable and compoundable with the permission of thecourt before which any prosecution of such offence is pending, and triable by anyMagistrate.

Punishment for defamation (499-500)v

Any person who by words either spoken or intended to be read, or by signs or by visible representations,makes or publishes any imputation concerning any person intending to harm, or knowing or havingreason to believe that such imputation will harm the reputation of such person is said to defame thatperson. Section can be used to protect the reputation of those trafficked for the purpose of commercialsexual exploitation or for pornography. Whoever defames another shall be punished with simpleimprisonment for a term which may extend to two years, or with fine, or with both.

The offence is non-cognizable, bailable, and compoundable. It is triable by aMagistrate of the First Class.

3.2.2. Immoral Traffic (Prevention) Act, 1956

The ITPA is a special legislation dealing with offences of trafficking for commercial sexual exploitation.The Table below gives a broad overview of the provisions.



Sl. No. Immoral Traffic (Prevention) Act, 1956 SectionA Punishment for keeping a brothel or allowing premises

to be used as a brothel 3B Punishment for living on earnings of prostitution 4C Procuring, inducing, or taking person for the sake of prostitution 5D Detaining person in premises where prostitution is carried on 6E Prostitution in or in the vicinity of public places 7F Seducing or soliciting for the purposes of prostitution 8G Seduction of a person in custody 9

In addition to the substantive provisions, relevant sections which strictly fall within the proceduralaspects but which are crucial to the understanding of the ITPA are also discussed.

The ITPA in Sec. 2 specifically defines several terms and it is important to keep in mind these definitionswhile interpreting the substantive provisions of the ITPA.

a) ‘brothel’ includes any house, room, conveyance, or place, or any portion of any house, room,conveyance, or place, which is used for purposes of sexual exploitation or abuse for the gain ofanother person or for the mutual gain of two or more prostitutes;

aa) ‘child’ means a person who has not completed the age of sixteen years;

c) ‘magistrate’ means a magistrate specified in the second column of the Schedule as beingcompetent to exercise the powers conferred by the Section in which the expression occurs andwhich is specified in the first column of the Schedule;

(ca) ‘major’ means a person who has completed the age of eighteen years;

(cb) ‘minor’ means a person who has completed the age of sixteen years but has not completedthe age of eighteen years;

f) ‘prostitution’ means the sexual exploitation or abuse of persons for commercial purposes, and theexpression ‘prostitute’ shall be construed accordingly;

h) ‘public place’ means any place intended for use by, or accessible to, the public and includes anypublic conveyance;

i) ‘special police officer’ means a police officer appointed by or on behalf of the State Government tobe in charge of police duties within a specified area for the purpose of this Act;

j) ‘trafficking police officer’ means a police officer appointed by the Central Government under Sub-Section (4) of Section 13.

A. Punishment for keeping a brothel or allowing premises to be used as a brothel (3)vi

This Section seeks to punish those who manage, keep, or help in the management of a brothel. It doesnot seek to punish the victim of trafficking for CSE. The object of this Act is to punish those who carryon the trade of managing and keeping brothels. Such a person shall be punishable on first convictionwith rigorous imprisonment for a term of not less than one year and not more than three years and alsowith fine, which may extend to two thousand rupees, and in the event of a second or subsequentconviction, with rigorous imprisonment for a term of not less than two years and not more than fiveyears and also with fine which may extend to two thousand rupees.



The next part of this Section lays down the punishment for the occupier, tenant, or owner of theproperty who uses or knowingly allows any other person to use the premises as a brothel. Under thissection, the person shall be punishable on first conviction with imprisonment for a term which mayextend to two years and with fine which may extend to two thousand rupees, and in the event of asecond or subsequent conviction, with rigorous imprisonment for a term which may extend to five yearsand also with fine. At the same time, all lease agreements relating to the premises used for prostitutionshall be vitiated upon conviction under this Act.

B. Punishment for living on the earnings of prostitution (4)vii

This Section is applicable only to a person over eighteen years of age living on the earnings of prostitutionof another person. Its primary object is to punish commercial sexual exploiters who push women intoprostitution and make economic gains from prostitution. Persons below the age of eighteen years, suchas children who may be dependant on their mother, should not be victimised.

On conviction, the accused shall be punishable with imprisonment for a term which may extend to twoyears, or with fine which may extend to one thousand rupees, or with both, and where such earningsrelate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of notless than seven years and not more than ten years.

C. Procuring, inducing, or taking person for the sake of prostitution (5)viii

This Section is of primary importance as it provides a working definition of trafficking for CSE. It seeksto punish those who take away, procure, induce, cause or attempt any of these acts towards a person forthe purpose of prostitution. ‘Taken’ does not imply any distance; even taking from one room to anotherin the same building is enough. Taking with the intention to make or bring up the person to be theinmate or frequenter of a brothel or to carry on prostitution, is enough for this Section to operate; theactual act of prostitution is not necessary. It is only traffickers and those who abet them in any way aswell as other commercial sexual exploiters who can be punished under this Section.

The accused shall be punishable on conviction with rigorous imprisonment for aterm of not less than three years and not more than seven years and also with finewhich may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonmentfor a term of seven years shall extend to imprisonment for a term of fourteenyears.

If the person in respect of whom an offence committed under this sub-section is a child, the punishmentprovided under this sub-Section shall extend to rigorous imprisonment for a term of not less than sevenyears but may extend to life; and if the victim is a minor, the punishment provided under this sub-Section shall extend to rigorous imprisonment for a term of not less than seven years and not more thanfourteen years.

An offence under this Section shall be triable either in the place from which a person is procured,induced to go, taken or caused to be taken, or from which an attempt to procure or take such person ismade; or in the place to which he/she may have gone as a result of the inducement, or to which he/sheis taken or caused to be taken, or an attempt to take him/her is made. Thus, an offence under thisprovision may be triable at the Source/ Transit or Destination area.

D. Detaining a person in premises where prostitution is carried on (6)ix

This Section relates to a person who has been detained with or without his/ her consent in any premiseswhere prostitution is carried out. Actual physical restraint need not be proved. Something in the natureof control or influence and some kind of persuasion may be proved8.

8. Harnam Singh v. Emperor, AIR 1939 Lah 295



The offence under this Section is punishable with imprisonment of either descriptionfor a term which shall not be less than seven years but which may be for life, or fora term which may extend to ten years and shall also be liable to fine

U/S. 6(2), any person who is found with a child in a brothel is presumed, unless the contrary is proved,to have committed an offence U/S. 6(1) and will accordingly be liable to be punished. Sec. 6 (2-A)further stipulates that where a child or minor found in a brothel is, on medical examination, detectedto have been sexually abused, it shall be presumed, unless the contrary is proved, that the child orminor has been detained for purposes of prostitution or, as the case may be, has been sexually exploitedfor commercial purposes.

U/S. 6(3), a person shall be presumed to detain a woman or girl in a brothel or in or upon any premisesfor the purpose of sexual intercourse with a man other than her lawful husband; if such person, withintent to compel or induce her to remain there withholds from her any jewellery, wearing apparel,money, or other property belonging to her, or threatens her with legal proceedings if she takes awaysuch items.

Sec. 6(4) forbids the institution of legal proceedings against a woman or girl who has been so detainedin a brothel or other premises at the instance of the person detaining her, for the recovery of anyjewellery, wearing apparel, or other property or any money alleged to have been supplied or lent to heror for recovery of any money alleged to be payable by such woman or girl.

E. Prostitution in or in the vicinity of public places (7)x

This Section seeks to punish the person who carries on prostitution and the person with whom suchprostitution is carried on (‘customer’ or ‘clientele’) within areas notified under sub-section (3) or withina distance of two hundred metres of any place of public religious worship, educational institution,hostel, hospital, nursing home or such other public place of any kind as is notified by the Commissionerof Police or the Magistrate.

An offence under this Section shall be punishable with imprisonment for a termwhich may extend to three months. However, in respect of a child or minor, theperson committing the offence shall he punishable with imprisonment of eitherdescription for a term which shall not be less than seven years, but which may befor life or for a term which may extend to ten years, and shall also be liable to fine.

By virtue of the definition of ‘Prostitution’ U/ S. 2(f) it is possible to charge the traffickers, commercialsexual exploiters, brothel keepers and brothel managers u/ s. 7(1). The victim of CSE should be excludedfrom prosecution under this Section as prostitution means the ‘sexual exploitation or abuse of personsfor commercial purposes’ and hence it is the exploiter and trafficker who is punishable and not theexploited victim This interpretation is further supported by the insertion of Sec. 7(1-A), which dealswith offences in respect of a child or a minor.

F. Seducing or soliciting for purpose of prostitution (8)xi

Under this provision, the acts of tempting or attracting, or attempting to tempt or attract, the attentionof any person in a public place or within sight of, and in such manner as to be seen or heard from anypublic place, by words, gestures, etc. have been made punishable. The term ‘public place’ has beendefined in Sec. 2 (h) of the ITPA.

Sub-section 8 (b) refers to persons who solicit, etc. The traffickers, commercial sexual exploiters orbrothel keepers involved in soliciting are liable to be punished under this Section9. However, a child/minor must never be charged U/S. 8 but should be dealt with under the Juvenile Justice Act. Similarly,

9. State v. Premchand, In the High Court of Bombay, Cri. App. No 1721 of 1962. State of Maharashtra v. Premchand KhubChand (AIR 1964 Bom155)



if one person makes another person ‘solicit’, the latter is a victim of crime and therefore, the former isthe offender. An offence under this Section is punishable on first conviction with imprisonment for aterm which may extend to six months, or with fine which may extend to five hundred rupees, or withboth, and in the event of a second or subsequent conviction, with imprisonment for a term which mayextend to one year, and also with fine which may extend to five hundred rupees. A man who commitsany of the offences under this Section shall be punishable with imprisonment for not less than sevendays but which may extend up to three months.

G. Seduction of a person in custody (9)xii

U/S. 9, a person who, having custody, charge, or care of, or position of authority over any other person,causes or aids or abets the seduction for prostitution of that person shall be punishable with imprisonmentof either description for a term of seven years to life or for a term of upto ten years and fine. However,the Court may, after mentioning adequate and special reasons in the judgment, impose a sentence ofimprisonment for a term of less than seven years. Thus, this Section provides for heavy punishment forthe trafficker who seduces a woman who is in his custody, or under his protection, into prostitution.This Section would include in its purview all such close relatives with whose consent a minor or a womanis trafficked for prostitution.

In addition to the above offences detailed in the Chart, there are a few relevant sections which arediscussed below.

Offences to be cognizable (14)xiii

All offences under the ITPA shall be deemed to be cognizable offences within the meaning assignedunder the Criminal Procedure Code. This section also lays down the powers of arrest given to policeofficers under the Act.

Search without warrant (15)xiv

Only the Special Police Officer (SPO) or the Trafficking Police Officer (TPO) appointed U/S. 13xv of theAct is competent to investigate an offence under this Act. The police officer not specially appointed asSpecial Police Officer cannot investigate offences under the Act even though they are cognizable offences10.Police officers appointed to assist the Special Police Officer are entitled to investigate11. The SPO or theTPO has the power to conduct a search of any premises without a warrant, if it is suspected that anoffence punishable under this Act has been or is being committed in respect of any person living in thatpremises. The officers making a search of such premises should be accompanied by at least two womenpolice officers (Sec. 15 (6A)). The search must be witnessed by at least one respectable male inhabitantof the locality in which the premises to be searched is situated and one respectable woman who may ormay not reside in that locality (Sec. 15 (2)).

Rescue of person (16)xvi

The police may enter a brothel and rescue trafficked women and children upon a direction received fromthe Magistrate under this Section and, in such cases, must immediately produce the rescued personsbefore the Magistrate.

Closure of brothel and eviction of offenders from the premises (18)xvii

Order by Magistrate: Under this Section, a Magistrate may, after issuing a show cause notice to andhearing the owner, lessor, landlord, tenant, lessee, occupier, or any other person in charge of a house,room, place or portion thereof, which is situated within a distance of two hundred meters of a notifiedpublic place and is suspected of being used as a brothel pass an order under Section 18(1) -

10. Mumtaz @ Behri v. The State (Government of NCT of Delhi), Cri App. No. 88/200211. Harbhajan Kaur and Others v. State, Cri. Rev. No. 528 of 1963



1. directing eviction of the occupier from such house, room, place or portion, within seven days ofthe passing of the order;

2. that the prior approval of the Magistrate shall be required for the letting out of such house, room,place or portion within a period of one year (or three years, in a case where a child or minor hasbeen found in such house, room, place, or portion during a search conducted under Section 15)after passing of such order;

3. that the house, room, place, or portion be restored to the owner or landlord (if such owner orlandlord is found to be innocent of such improper use), with a further direction that the house,room, place, or portion shall not be leased out, or otherwise given possession of, to or for thebenefit of the person who was allowing the improper user therein.

Order by court: U/S. 18 (2), a court convicting a person of any offence U/S. 3 or 7 may pass similarorders as U/S. 18 (1) without further notice to such person to show cause.

No appeal: An order passed by a Magistrate or a court U/S. sub-section (1) or (2) shall not be subjectto appeal and shall not be stayed or set aside by the order of any civil or criminal court.

3.3 Special Provisions Relating to Commercial Sexual Exploitation of Children

This sub-chapter deals with laws that can be invoked when a child or minor is trafficked for commercialsexual exploitation. Children are also trafficked for reasons other than CSE. In other Chapters mentionhas been made of trafficking for other purposes, such as trafficking for labour, in the service orentertainment industry in forms like pornography or performances, for marriage, circuses, camel jockeyingetc. Some forms where sexual exploitation is concerned such as prostitution and pornography are dealtwith under this sub Chapter. Others are more appropriately discussed in the Chapter on MiscellaneousOffences.

The Table below gives a broad overview of specific provisions dealing with Trafficking of Children andCommercial Sexual Exploitation. These provisions must be read along with General Provisions on Trafficking(Chapter 2) and Commercial Sexual Exploitation of Women (Chapter 3.2).

1 Indian Penal Code Provisions Section A Procuration of Minor girl 366A

B Selling Minor for prostitution 372

C Buying Minor for prostitution 373

2 Juvenile Justice Act E Cruelty to minor/ child 23

F Employing juvenile for begging 24

G Intoxicating minor with drugs or psychotropic substance 25

H Exploitation of juvenile or child employee 26

I Alternative punishment 28


The IPC has a number of specific sections dealing with trafficking of children for commercial sexualexploitation. These are over and above provisions available for Trafficking of Women for CommercialSexual Exploitation and thus must be read together. General provisions of Criminal Law on HumanTrafficking also must be referred to as they may in many cases be applicable here. Similarly, in cases of



intercountry trafficking of children, the Section of Chapter 2 dealing with Intercountry Traffickingmust be looked at.

Given below are some specific sections dealing with trafficking of children.

A. Procuration of minor girl (366A)xviii

In most cases of trafficking for the purpose of prostitution, this Section will come into operation. Itdoes not involve the element of kidnapping and does not depend on the concept of consent, as inducingin any way whatsoever is what is required, coupled with a knowledge of the victim being forced orseduced into illicit intercourse. Forced intercourse implies lack of will on the part of the girl and not herguardian12. Helpless resignation in inevitable circumstances does not amount to consent13. There is noneed that the alleged intercourse should have been completed or even attempted; a mere inducement tomove from one place to another is sufficient. Once intent is established the offence is complete; successin the commission of the intercourse or consent of the woman is immaterial. The offence is punishablewith imprisonment which may extend to ten years, and shall also be liable to fine.

The offence is cognizable, non-bailable, non-compoundable, and triable by a Courtof Sessions.

B. Selling minor for purposes of prostitution, etc. (372)xix

The provisions of this Section may be invoked to prosecute all traffickers/ exploiters who are involvedin the prostitution of minors. The offence is punishable with imprisonment of either description for aterm which may extend to ten years, and the offender shall also be liable to fine.

C. Buying minor for purposes of prostitution, etc. (373)xx

This Section allows for the prosecution of the traffickers, the commercial sexual exploiters or brothelmadams, and also those who sexually exploit the minor, i.e., the customers. The presumption that ismade in the explanation to the section shifts the burden of proof upon the brothel owner, manager, etc.The offender can be punished with imprisonment of either description for a term which may extend toten years, and shall also be liable to fine.

The offence is cognizable, non-bailable, non-compoundable, and triable by Courtof Session.

Sakshi v. Union of India14 drew the attention of the Supreme Court to the fact that the laws relating torape are not adequate to cover various sexual abuses committed against women and children, and thatthe IPC does not comprehensively cover various forms of child sexual abuse. The SC gave the followingdirections in this case regarding the procedural aspects of conducting cases of child sexual abuse, whichmay be used very effectively even in trials pertaining to victims of child trafficking for CSE:

• The questions put in cross-examination on behalf of the accused, insofar as they relatedirectly to the incident, should be given in writing to the presiding officer of the court whomay put them to the victim or witnesses in a language, which is clear and is not embarrassing.

• The presiding judge should also allow the victim of child abuse or rape, sufficient breaks asand when required while giving testimony in court.

• The whole inquiry before a Court being to elicit the truth, victims or witnesses must be ableto depose about the entire incident in a free atmosphere and without any embarrassment.Recognizing the sensitivity of cases of child sexual abuse and rape, the Supreme Courtdirected that the victims and witnesses be kept away from the accused during trial bymeans of a screen or similar arrangement separating them.

12. Fulchand Tepriwala v. Emperor AIR 1932 Cal 44213. Phoola 1980 Cri LJ (NOC) 42 Raj14. AIR 2004 SC 3566



3.3.2 Juvenile Justice (Care and Protection of Children) Act, 2000

For a detailed discussed see Chapter 2 at 2.2.4

3.4 Sexual Exploitation due to Cultural Practices

3.4.1 BackgroundA number of children are pushed into forms of sexual exploitation due to a variety of cultural practices-either customary or religious such as devadasi, jogins or bhavins. States like Karnataka, Andhra Pradesh,and Maharashtra for instance have passed Devadasi System Abolition Acts15 that seek to completelyabolish the system and punish offenders. Goa has a comprehensive Goa Children’s Act.

If young girls are ‘dedicated’ as devdasis etc. which is a façade for their CSE, then the provisions of thevarious Devdasi System Abolition Acts may be invoked.

The Goa Children’s Act, 2003The Goa Children’s Act also contains provisions with respect to the custom of dedication. A child whohas been dedicated is deemed to be a “child in need” (Sec. 2 (l) (iv) ). “Dedication” has been defined tomean the performance of any act or ceremony, by which a girl-child is dedicated to the service of anydeity, idol, object of worship, temple, other religious institutions or places of worship (Sec. 2 (n)).Dedication of a minor girl-child, whether with or without her consent is made unlawful, and the dedicationshall not render the child incapable of entering into a valid marriage (Sec. 9 (6)). A person responsiblefor the dedication shall be punished with a maximum of 3 years imprisonment and fine of Rs. 2000/-(Sec. 9 (7)). Penalties are enhanced under the Act, if the dedication is made by a parent, guardian orrelative of the child (Sec. 9 (8) - Imprisonment of not less than 2 years and extendable to 5 years andfine between Rs. 2000/- up to Rs. 5000/-) .

The Act can be referred to in Annexure I of this Chapter.

3.4.1 Religious Institutions (Prevention of Misuse) Act, 1988

This Act can be used to combat various social evils that are associated with religious institutions likesome of the practices mentioned earlier.xxi Some of these activities of sexual exploitation may be conductedwithin the premises of religious institutions under the pretext of rituals. This Act can be invoked inorder to prevent such misuse. The manager of the religious institution or person connected with suchcontravention can be punished for contravention of the Act. The devdasis or other trafficked womencannot be brought under the purview of this Act. They are to be treated as ‘victims’ and not as ‘offenders’.

3.5 Sex Tourism and Trafficking

Trafficking of women and children to tourist destinations is done to facilitate what is called ‘Sex Tourism.’Child sex tourism has been defined as “tourism organized with the primary purpose of facilitating theeffecting of a commercial sexual relationship with a child”16. Child sex-tourism can be simply explainedas the commercial sexual exploitation of children by persons who travel from their own country toanother country to engage in sexual acts with children.

Chapters in this document on Commercial Exploitation of Women (3.2) and on Commercial SexualExploitation of Children (3.3) can be used against the people who traffic women and children for

15. The Madras Devdasi (Prevention of Dedication) Act, 1947, The Bombay Devdasi Act, 1934, The Andhra Pradesh (Prohibitionof Dedication) Act, 1988, The Karnataka Devdasi (Prohibition of Dedication) Act, 1982.

16. L. Lean Lim (Ed.), The Sex Sector: The Economic and Social Bases of Prostitution in Southeast Asia, ILO, Geneva, 1998.p. 183



prostitution in tourist areas. This apart, the general provisions dealt with in Chapter 2 may also be usedalong with State legislations where ever available.

3.6 Special Provisions Relating to Pornography and Trafficking

Trafficking of women and children may also be done for the purposes of pornography. Where any sexualoffence is committed against the victim, the provisions dealt with under the general provisions andthose specifically related to sexual exploitation will be attracted. However, where the offence relates topornography, the following sections may be applied coupled with the General Provisions in CriminalLaw with Respect to Human Trafficking.

The laws dealing with pornography that are relevant to this study are—

3.6.1 The Indian Penal Code SectionA Sale of obscene books etc 292-293B Obscene acts and songs 294C Defamation 500D Word/gesture/act intending to outrage modesty 509

3.6.2 The Indecent Representation of Women Act Entire Act3.6.3 Information Technology Act 673.6.4 Young Persons (Harmful Publications) Act Entire Act

These provisions are useful to bring to book any person engaging in production of pornography, includingtraffickers who traffic women or children for this purpose or abet in doing so.

3.6.1 The Indian Penal Code, 1860

A. Sale, etc., of obscene books, etc (292-293)xxii

Sec. 292 can be used along with other provisions on trafficking when a person is involved in pornographicoffences. A person convicted under this Section shall be punished on first conviction with imprisonmentof either description for a term which may extend to two years, and with fine which may extend to twothousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of eitherdescription for a term which may extend to five years, and also with fine which may extend to fivethousand rupees. Sec. 293 deals with sale etc. of obscene objects to young persons and a person convictedshall be punished on first conviction with imprisonment of either description for a term which mayextend to three years, and with fine which may extend to two thousand rupees, and, in the event of asecond or subsequent conviction, with imprisonment of either description for a term which may extendto seven years, and also with fine which may extend to five thousand rupees.

Offences under both these sections are cognizable, bailable, non compoundableand triable by any Magistrate.

B. Obscene acts and songs (294)xxiii

This Section requires that an obscene act, song, words, etc., be done or said in or near a public place andthat such act annoys others. This can be used to counter the screening of pornographic films or othersuch acts done in public places. The offence shall be punished with imprisonment of either descriptionfor a term which may extend to three months, or with fine, or with both.

The offence is cognizable, bailable, and non-compoundable and triable by anyMagistrate.

C. Punishment for defamation (499-500)For discussion of these provisions, see sub-chapter 3.2.1



D. Word, gesture, or act intended to insult the modesty of a woman (509)This Section can be used to combat pornography and even trafficking for the purpose of commercialsexual exploitation and also any other act that lowers the dignity of a woman. It requires the intentionto insult the modesty of any woman, coupled with saying any words, making any sound or gesture, orexhibiting any object, intending that such word or sound shall be heard, or that such gesture or objectshall be seen by such woman, or intrudes upon the privacy of such woman. The offence shall be punishedwith simple imprisonment for a term which may extend to one year, or with fine, or with both. Theoffence is cognizable, bailable, and compoundable with the permission of the court and triable by anyMagistrate.

3.6.2 Indecent Representation of Women (Prohibition) Act, 1986This Act deals primarily with the prohibition of advertisements and selling of publications that indecentlyrepresents women. Indecent representation of women means the depiction in any manner of the figureof a woman, her form or body or any part thereof, in such a way as to have the effect of being indecent,or derogatory to, or denigrating of women, or is likely to deprave, corrupt, or injure the public moralityor moralsxxiv. This Act in Sections 3 and 4 prohibits the publication or exhibition of any advertisementthat in any way indecently represents women and also production, sale, letting for hire, distributing,circulating, or sending by post, any book, pamphlet, paper, slide, film, writing, drawing, painting,photograph, representation or figure which contains indecent representation of women in any formxxv.It can be used to prevent trafficking for the purpose of pornography, as any act that facilitates the actsmentioned above is also an offence.

Section 6 stipulates that any person who contravenes the provisions of Section 3 or Section 4 shall bepunishable on first conviction with imprisonment of either description for a term which may extend totwo years, and with fine which may extend to two thousand rupees; and in the event of a second orsubsequent conviction, with imprisonment for a term of not less than six months but which may extendto five years, and also with a fine not less than ten thousand rupees but which may extend to one lakhrupees.xxvi Offences under this Act have been made bailable and cognizable vide Section 8.xxvii

3.6.3 Information Technology Act, 2000Publishing of information that is obscene in electronic form (67)xxviii

This Section applies to all those who either publish, transmit, or cause to be published any obscene orpornographic or other such lascivious material. Electronic form may be through cassettes, on computersor even on mobile phones.xxix What is necessary, apart from the above, is that such material depraves orcorrupts the mind of those exposed to it. An offender under this Section shall be punished on firstconviction with imprisonment of either description for a term which may extend to five years, and withfine which may extend to one lakh rupees; and in the event of a second or subsequent conviction, withimprisonment of either description for a term which may extend to ten years and also with fine whichmay extend to two lakh rupees.

3.6.4 Young Persons (Harmful Publications) Act, 1956xxx

This Act may be used to counter pornography to some extent. Although this Act will only operate if thepublication is harmful or corrupts the mind of young persons, it can still be used against pornography.Harmful publications include a book, magazine, pamphlet, leaflet, newspaper or like publications. If aperson sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or forpurposes of sale, hire, distribution, public exhibition or circulation, prints, makes or produces or has inhis possession any harmful publication, or advertises or makes known by any means whatsoever thatany harmful publication can be procured from or through any person, he shall be punishable withimprisonment which may extend to six months, or with fine, or with both. All offences under this Actare cognizable. This legislation may not be directly relevant in trafficking cases, but would be an add-onwhere there has been trafficking for pornography for distribution among young persons.



ANNEXURE I

The Goa Children’s Act, 200317

An Act to protect, promote and preserve the best interests of Children in Goa and to create a society that is proud to bechild friendly.

Be it enacted by the Legislative Assembly of the State of Goa in the Fifty-fourth Year of the Republic of India, asfollows:-

1. Short title, extent and commencement.-(1) This Act may be called the Goa Children’s Act, 2003.(2) It shall extend to the whole of the State of Goa.(3) It shall come into force at once.

2. Definitions.- In this Act, unless the context otherwise requires,-(a) “authorised officers” means officers that are appointed as such under the provisions of this Act;(b) “A care giver” is a person who is responsible for looking after the well being of the child. This person may be a

staff member of any residential facility for children, an employee of an educational institution, a nursery, crèche,a clinic, a hospital, a sports club, a recreational facility or an employee of any facility which provides services tochildren;

(c) “A place of care” of children are all the places mentioned in clause (b) and any other place which is a place for thecare and custody of children;

(d) “Child” means any person who has not completed eighteen years of age unless any other law in force specifiesotherwise or unless otherwise indicated in specific provisions in this Act;

(e) “Child in case of child labour”, shall be a person who has not completed his fourteenth year of age;(f) “Children’s Home” means an institution, whether called an orphanage, home or by any other name and where one

or more children reside, either fully or partly;(g) “Chief Secretary” means the Chief Secretary to the Government of Goa;(h) “Children’s Court” means the Court constituted under section 27;(i) “Competent authority” means the Secretary to the Government in charge of the Department of Women and Child

Development;(j) “Child labour” means all forms of labour involving children below the age of fourteen;(k) “Certificate” means the certificate of registration granted under section 6;(l) ”Child in need” means all children including those whose rights are being violated or who need special attention

and/or protection and shall include, for the purposes of this Act:-(i) Child in need of care and protection and juvenile in conflict with law as defined in the Juvenile

Justice (Care and Protection of Children) Act, 2000 ( 56 of 2000 ).(ii) Child labour;(iii) Street Children;(iv) A child who has been dedicated;(v) A foetus;(vi) An adopted child;(vii) A child in a Home, registered or otherwise;(viii) A child in foster-care;(ix) Child in situation of abuse;(x) A differently abled child;(xi) Children of prisoners,(xii) Children of commercial sex workers;(xiii) A child who is vulnerable.(xiv) A child whose parents are separated or divorced;(xv) A child who has an illness or disease or ailment which has a social stigma attached to it eg. HIV,

Leprosy.(m) “Child abuse” refers to the maltreatment, whether habitual or not, of the child which includes any of the

following:-(i) psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;(ii) any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a

child as a human being;(iii) unreasonable deprivation of his basic needs for survival such as food and shelter; or failure to

immediately give medical treatment to an injured child resulting in serious impairment of his growthand development or in his permanent incapacity or death;

(n) “Dedication” means the performance of any act or ceremony by whatever name called, by which a girlchild is dedicated to the service of any deity, idol, object of worship, temple, other religious institutionsor places of worship;

(o) “Director” means the Director of the Directorate of Women and Child Development;

17. Source: goagovt.nic.in/documents/goachildact2003.pdf



(p) “Fund” means the State Children’s Fund constituted under section 14;(q) “guardian” in relation to a child means his natural guardian or any other person who is legally authorised

for the purpose of having the actual charge or control over the child;(r) “High risk” areas means those areas in which children are vulnerable to exploitation as notified by the

Government in the Official Gazette;(s) “Offence” means an act or omission made punishable under any law for the time being in force;(t) “prescribed medical authority” means that authority whose certificate on the age of a child shall be

conclusive evidence as to the age of the child to whom it relates;(u) “prescribed” means prescribed by rules under this Act;(v) “registered children’s home” means a children’s home which has been registered under this Act;(w) “Secretary” means the Secretary to the Government in charge of the Department of Women and Child

Development;(x) “Sexual Offence” covers all forms of sexual abuse which constitute offences under this Act;(y) ‘Sexual offences’ for the purposes of awarding appropriate punitive action means and includes,-

(i) “Grave Sexual Assault” which covers different types of intercourse: vaginal, oral, anal, use of objects,forcing minors to have sex with each other, deliberately causing injury to the sexual organs, makingchildren pose for pornographic photos or films;

(ii) Sexual Assault which covers sexual touching with the use of any body part or object, voyeurism,exhibitionism, showing pornographic pictures or films to minors, making children watch others engagedin sexual activity, issuing of threats to sexually abuse a minor, verbally abusing a minor using vulgarand obscene language;

(iii) Incest which is the commission of a sexual offence by an adult on a child who is a relative or isrelated by ties of adoption.

(z) “child trafficking” means the procurement, recruitment, transportation, transfer, harbouring or receipt ofpersons, legally or illegally, within or across borders, by means of threat or use of force or other forms ofcoercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or ofgiving or receiving payments or benefits to achieve the consent of a person having control over anotherperson, for monetary gain or otherwise.

(za) ‘Differently Abled Children’ includes children with disabilities, learning difficulties and associateddisorders like Autism.

3. Rights of the Child:(1) The State shall ensure that children and the young are protected against exploitation and that they are given

opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity.(2) Childhood and youth shall be protected against exploitation and against moral and material abandonment.(3) The State shall promote with special care the educational interests of children from the weaker sections of society

including the Scheduled Castes and Scheduled Tribes.(4) The State shall regard the raising of the level of nutrition and the standard of living as well as the improvement

of public health as among its primary duties.(5) The provisions of the Convention on the Rights of the Child as acceded to by the Government of India are hereby

declared to be part of the law of the land and it shall be the duty and responsibility of the State Government torespect and ensure that the Rights of the Child as declared and enumerated in the Convention, are protected andguaranteed to every child within the territory of Goa.

(6) For the proper implementation of the Rights of the Child included in the Convention and to prevent anydiscrimination, exploitation or abuse of the child on any ground, government shall take adequate measures;

(7) All the authorities, whether public or private, social welfare institutions, or legislative bodies shall, whileundertaking any action concerning children, take the best interest of the child as the primary consideration.

(8) The provisions of the Convention on the Rights of the Child are taken as rights of the child in Goa and are legallyenforceable, except where they pertain to the central government or to any other authority which is outside thepurview of the state government provided that nothing in this section shall restrain the government from specifyinghigher standards for children.

4. Education.-(1) The State shall endeavour to promote holistic education. Universal application of joyful learning processes should

be ensured.(2) The State accepts the concept of zero rejection for children. No child shall therefore be denied admission to any

school on any ground including that the name of the father is not available; the absence of relevant documentation;the child is suffering from HIV or AIDS; belongs to marginalised communities; suffers from any illness or that thechild is differently abled.

(3) All schools shall have a trained counsellor for providing counselling facilities to children. In mixed schools, thereshall be one male and one female counsellor. The State shall provide assistance to all schools to achieve this.

(4) All schools shall include child rights and gender justice in their curriculum and at least 48 hours of instructionevery year shall be exclusively devoted to teaching and discussing all matters related to these. The duties of thechild should also be discussed during these sessions. This will apply to all students from Standard V and above.

(5) The school curriculum shall also include health awareness including malaria, AIDS, personal hygiene, nutrition,family life education, communicable diseases, alcoholism, substance abuse, etc., irrespective of the stream ofeducation. This will apply to all students from Standard V and above.



(6) Health applied education towards holistic health shall be compulsorily included in all schools with, among otherthings, yoga, pranayama and meditation, in the physical education curriculum. This will apply to all students.

(7) All schools shall have elected Student Councils or any other mechanism such as School Parliament to fosterparticipatory democratic processes. This will apply to all students from Standard VIII and above.

(8) The Government shall work towards the goal of universal elementary education and eradication of child illiteracywithin a period of three years from the commencement of this Act. The State shall prepare a comprehensive Planof Action for achieving this which may include provision for alternate schooling including non-formal education,vocational and livelihood-skills training, and shall create the necessary infrastructure and an enabling environmentin order to realise the goal.

(9) The State shall lay down guidelines for early childhood care and education and for all pre-school educationalinstitutions for children, including registration and regulation of standards.

(10) Every school shall have safe drinking water, toilet facilities and adequate physical infrastructure.(11) Every school shall be equipped with appropriate and adequate teaching aids.(12) Corporal punishment is banned in all schools.(13) The State shall, in the manner prescribed, provide support to all children with disabilities and challenges.(14) A participatory evaluation and learning process rather than the exam system based on learning by rote and

ensuring that all children have attained minimum levels of learning should be evolved.

5. Health & Nutrition.-(1) Mandatory immunisation with MMR vaccine in children, Rubella vaccine in adolescent girls and Hepatitis B

vaccine in infancy should be introduced as part of the ongoing Immunisation programme of the State.(2) The State shall endeavour to make possible Maternity leave of 6 months in all sectors of employment including for

adoptive mothers and single parents.(3) Creches and day care centres for infants and children of working mothers in all sectors of employment should be

set up at the work site or close to the same, in cities and villages, to the maximum extent of available resources.(4) The State should ensure the creation and maintenance of comprehensive Health cards inclusive of growth and

developmental, immunisation and other records for all infants and children including those in creches, homesand schools, and migrant children.

(5) The State shall seek to provide for palliative and terminal care for infants and children with life threatening andterminal illnesses like cancer and HIV/AIDS.

(6) The State shall take effective steps so that parents do not transmit the HIV virus to their child.(7) It shall be the duty of all individuals, organizations, institutions etc., to keep their immediate environment clean

and free of garbage, faeces, and other items harmful to children. Non-observance of the provisions of this sub-section will carry a penalty which may range from Rs. 100/- to Rs. 1000/-.

(8) The State shall strive to reach higher standards for children by protecting them from malaria and from allavoidable illness and diseases.

(9) Special provisions shall be made for the treatment, education and integration of all children with leprosy.(10) Special attention shall be given to issues of substance, drug and alcohol abuse in children.

6. Children’s Homes.-(1) All Children’s Homes must be registered under this Act. Such Children’s Homes as have already been set up prior

to the commencement of this Act shall apply and must register themselves with the Director in the prescribedform within three months from the commencement of this Act.

(2) The provisions of this section shall not apply to:-(a) any hostel, etc., directly regulated by a recognized educational institution;(b) any school, home, or any other institution for children which is recognized by any other Act in force in

the State;(3) The State shall set up District Inspection Teams for the regulation, supervision and control of all Children’s Homes

in the State.(4) The members of the District Inspection Team shall be appointed by the Secretary;(5) The term of Office of a Member of the District Inspection Team shall be two years.(6) A Member may at any time resign by giving notice in writing to the Secretary. The vacancy so created shall be

filled in by the Secretary within two months.(7) If, for any reason, the State Government considers it necessary to remove a Member, then it shall do so after

recording its reasons in writing.(8) On and from the commencement of this Act, no person shall maintain or conduct any Home except under, and in

accordance with, the conditions of a certificate of registration granted under this Act.(9) Every person desiring to maintain or run a home shall make an application for a certificate of registration to the

Director in such form and containing such particulars as may be prescribed.(10) Provided that a person maintaining or conducting a home at the commencement of this Act shall be allowed a

period of three months from such commencement to apply for such certificate get themselves registered underthis Act.

(11) The District Inspection Team, after scrutiny of the application form and after checking all other requirements,may grant or refuse an application for registration to run the home stating the reasons and with the priorapproval of the Secretary. Criteria for granting registration and provisions for revoking of a registration shall beas prescribed.

(12) The Chief Functionary of the Children’s Home can be authorized to surrender the registration by the Governing



Body or Trust through a resolution passed, and can give an application to the District Inspection Team stating thedesire to surrender the registration. However, the application has to be made six months in advance. The DistrictInspection Team has to arrange for another management to take over or entrust the Home/Institution to theState.

(13) Functions of the District Inspection Team shall include(a) Supervision and control generally of all matters relating to the management of homes in accordance with

the provisions of this Act.(b) Checking the application of those parties who have applied for a registration and taking a decision before

giving them permission to start an institution, after scrutinizing all the papers.(14) After a child completes 18 years, a report has to be prepared and submitted to the District Inspection Team,

indicating the progress and mental state of the child and provisions for further support.(15) In the event of death of an inmate, the Home shall submit a comprehensive report to the District Inspection

Team.

7. Child Labour.-(1) Child Labour shall be prohibited in the State of Goa for all children who have not completed their 14th year of

age.(2) For the purpose of this Act, Child labour shall include:-

(a) all forms of hazardous employment as defined in the Child Labour (Prohibition and Regulation) Act, 1986;(b) all forms of non-hazardous employment as defined in the Child Labour (Prohibition and Regulation) Act,

1986 ( Act 61 of 1986) and Goa, Daman and Diu Shops and Establishments Act, 1973 (Act No. 13 of 1974)and Goa, Daman and Diu Shops and Establisments Rules, 1975;

(c) all forms of domestic employment, meaning employment in households, doing work of a domestic nature,either temporarily, permanently, piece-rated or part time;

(d) all forms of self employment meaning labour such as rag picking, plastic bag selling, nut selling, runningerrands, carrying load of shoppers etc.

(3) All Children who are identified as child labourers shall be immediately released therein and placed in a registeredChildren’s Home or a State run institution or any other place identified under the Plan of Action.

(4) The State shall ensure that a satisfactory Rehabilitation Programme is in position before taking action on this.(5) The punishment for violation of the provisions of this Section shall be as under:-

(a) for all forms of hazardous employment, a fine of Rs. 50,000/- (Rupees fifty thousand only) with simpleimprisonment of one year for the employer;

(b) for all forms of non-hazardous employment, a fine of Rs. 25,000/- (Rupees twenty five thousand only)and simple imprisonment of three months for the employer;

(c) for all forms of domestic labour, a fine of Rs. 50,000/- (Rupees fifty thousand only) for the personemploying the domestic child labour.

(6) The State shall formulate a comprehensive Plan of Action to eradicate all forms of Child Labour within a period oftwo years from the commencement of this Act. The Plan shall include schemes for the identification, release andrehabilitation of the child labourers, their education, integration into society and imparting skills and vocationaltraining to them and for the prevention of child labour.

(7) The Plan of Action shall be implemented phase-wise over this period of 2 years and the Government shall specifythe dates from which each of the penal action in sub-section (5) above shall be effective and full publicity to thisshall be given by the Director.

(8) There shall be a Child Labour Vigilance Officer in each Taluka to monitor the implementation of the Plan of Actionto eliminate child labour, and to carry out such other duties as the Government may specify. The Officer shall beassisted by a Task Force of such other persons as may be prescribed.

(9) Trafficking in Children for the purposes of employment shall be prohibited under this Act. Any person whoemploys, aids or abets in the trafficking, including by employment of such trafficked children shall be penalisedwith a fine of Rs. 50,000/- and/or imprisonment of either description of not less than three months.

8. Child Abuse.-(1) All children should be assured of a safe environment. A safe environment is an environment in which he/she will

not be abused in any way and his/her development will be nurtured.(2) Whosoever commits any sexual assault as defined under this Act, shall be punished with imprisonment of either

description for a term that may extend to three years and shall also be liable to fine of Rs. 1,00,000/-. Whoevercommits any Grave Sexual Assault shall be punished with imprisonment of either description for a term that shallnot be less than seven years but which may extend to ten years and shall also be liable to a fine of Rs. 2,00,000.Whoever commits incest shall be punished with imprisonment of either description for a term of one year plusfine of Rs. 1,00,000/-. Testimony of the child victim shall be treated on par with the testimony of a child rapevictim under Section 375 of the IPC, as laid down by the Supreme Court of India.

(3) When a sexual assault or a grave sexual assault is committed, the need to ascertain whether a child needs to bemedically examined or not shall be decided by the investigating authorities in consultation with a professionalsocial worker/counsellor.

(4) Onus on person.- It has been found that adults “keep” children with them for a number of ostensible reasons andin many cases this is an arrangement for the sexual abuse of the child. All persons, who keep with them or residewholly, partly or in any form with one or more child/children who is not related to them by blood, shall informthis fact immediately to the Director as per the prescribed form. It will be the responsibility of the person to givethis information either in person and obtain a receipt or to send the information by Registered Post A/D.



(5) Provided that a period of 3 months from the commencement of this Act will be allowed to inform the Director.(6) The Director shall have the power to authorize the District Inspection Team to inspect and check the child/

children in each case under sub-section (4) and to submit a report with recommendations, if he considers itnecessary.

(7) In cases where it is found necessary, action will be taken to remove the child and place him in a registeredChildren’s Home or a State run institution.

(8) Provided further that nothing in this section shall apply to cases where reasonability exists such as when thechild/children are staying with their friends or visiting them on holidays for short period, or students are in agroup, or the child is legally adopted etc.

(9) Any refusal to inform the Director beyond the period of 3 months shall make the person(s) liable to a fine of Rs.1,00,000/- and also simple imprisonment for one year if it is found that the provisions of this section have beenviolated. This will be in addition to any other punishment that may be enforced.

(10) Onus on Establishment:-(a) All Hotels, and other establishments which provide boarding or lodging or any similar facility shall ensure

that children are safe and not at risk of child abuse within their premises including all adjoining beaches,parks etc. if they have access from such establishment.

(b) No child shall be allowed to enter any room of any hotel or establishment which provides boarding orlodging or any similar facility unless the child is registered as staying in that room with family, relativesor person related by blood:Provided that nothing in this Sub-Section will be deemed to apply to reasonable areas such as group ofschool children accompanied by a teacher (s), children who may be staying with their friends and theirfamilies, etc.

(c) All Hotels and other establishments which provide boarding or lodging or any similar facility shall ensurethat no child has access to any internet facilities which are not fitted with filters and to any objectionablematerial including through film or videos, disc-players, cable or any other medium provided by thatestablishment.

(d) The Owner and the Manager of the hotel or establishment shall be held solely responsible for any violationof this section.

(11) Offence in case of tourism related child sexual abuse, shall be non-bailable offence as defined under Section 2 (a)of the Code of Criminal Procedure, 1973.

(12) Any form of soliciting or publicizing or making children available to any adult or even other children for purposesof commercial exploitation is prohibited. This includes hosting websites, taking suggestive or obscene photographs,providing materials, soliciting customers, guiding tourists and other clients, appointing touts, using agents, orany other form which may lead to abuse of a child.

(13) Whosoever commits the offence of sale of children or aids or abets the sale of a child or the body part/organ ofa child, or where there is sufficient reason to believe is keeping a child for the purpose of using or selling anybody part of the child including its blood, shall be punished by imprisonment of either description for a period ofnot less than one year extendable to three years and a fine of not less than Rs. 50,000/-.

(14) It shall be mandatory for a developer of photographs or films, if he finds that the photos/films developed by himcontain sexual/obscene depictions of children, to report this to a police officer not below the rank of a DeputySuperintendent of Police to be specified by the Government. Failure to report the discovery of such photos/filmsshall attract a penalty of an imprisonment of either description which shall not be less than one year but whichmay extend to three years and/or a minimum penalty of Rs. 50,000/-.

(15) Airport authorities, border police, railway police, traffic police shall report any suspected case of trafficking ofchildren or an adult traveling with a child under suspicious circumstances. Such adults may be detained forquestioning at the nearest police station.

(16) Sale of children under the garb of adoption or otherwise shall be prohibited. For the purposes of this Act, sale ofchildren takes place,-

(a) when there is trading, i.e. selling children;(b) when a pregnant mother executes an affidavit of consent for adoption for a consideration;(c) when a person, agency, establishment or child-caring institution recruits women or couples to bear children

for the purposes of child trafficking;(d) when a doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other

person creates birth records for the purpose of child trafficking; or(e) when a person engages in the act of finding children among low-income families, hospitals, clinics,

nurseries, day-care centres, or other child-caring institutions, who can be offered for the purposes of childtrafficking;

(17) Sale of a body part/organ of a child is prohibited.(18) In all matters, the consent or willingness or otherwise of the child to be party to sexual abuse will not be a

consideration.(19) The State shall provide for the setting up of one or more Victim Assistance Units which shall facilitate the child

to deal with the trauma of abuse and assist the child in processes involved with appearing as a witness before anyCourt or authority handling a case of abuse of a child.

(20) The State shall carry out child sensitisation programmes for police officers at all levels which shall include anorientation on child rights laws. Child rights laws and methods of handling child abuse related cases shall also bespecifically included in the Police Training School curriculum.

(21) The State shall undertake child sensitization training for those involved in healing and rehabilitation and other



assistance programmes for children who are victims and promote programmes of information support and trainingfor such children.

(22) The Tourism Department of the Government shall collaborate with the Travel and Tourism Trade of Goa to evolvea Child Friendly Tourism Code for Goa;

(23) The Government shall have the power to appoint persons to go undercover and pose as prospective clients forchild prostitutes, as employers of child labour etc. and nothing done in the course of such operations shall beconstrued as a violation of the provisions of this Act.

9. Child Sexual Trafficking.-(1) Child prostitution shall be prohibited.(2) It shall be the duty of the State to remove all child prostitutes from their existing place of exploitation and to

ensure that they are rehabilitated and integrated into society.(3) The State shall prepare a comprehensive Plan of Action for this purpose which shall include providing education

and livelihood skills to such children and the prevention of child prostitution.(4) Any person who exploits a child for commercial sexual exploitation shall be liable to pay a penalty which may

extend to Rs. 1,00,000/- and simple imprisonment of one year. This will be in addition to any penalty or punishmentthat may be enforced under any other Act in force.

(5) All steps shall be taken at the protective home to restrict or even deny the visiting rights of any one who may beconsidered to be a perpetrator, including the parent of the child.

(6) Notwithstanding any custom or law to the contrary, the dedication of a minor girl child as a devadasi, whetherbefore or after the commencement of this Act, and whether she has consented to such dedication or not, ishereby declared unlawful, void, and to be of no effect and any minor girl child so dedicated shall not thereby bedeemed to have become incapable of entering into a valid marriage.

(7) Any person who, after the commencement of this Act, abets the performance of any ceremony or any act fordedicating a minor girl child as a devadasi or and ceremony or act connected therewith shall, on conviction, bepunished with imprisonment of either description for a term which may extend to 3 years and with fine whichmay extend to two thousand rupees:Provided that where the person referred to in this Section is the parent or guardian or a relative of the women sodedicated, he shall be punishable with imprisonment of either description which may extend to 5 years butwhich shall not be less than 2 years and with fine which may extend to five thousand rupees but which shall notbe less than two thousand rupees.

10. Children in Difficult Circumstances.-(1) The State shall endeavour, within a period of two years from the commencement of this Act, to withdraw all

street children from life on the streets.(2) All Street Children shall be withdrawn and placed in a Registered Children’s Home or a State run institute or any

other place provided that a satisfactory rehabilitation programme is in place before this is started.(3) The Government shall formulate a Plan of Action for the education, rehabilitation, education and integration into

society of these children.(4) The State Government shall establish and maintain, either by itself or in association with the voluntary

organizations, Children Shelters in every taluka for the reception of children in difficult circumstances, theirrescue and support and for coordinating subsequently their care, treatment, education, training, developmentand rehabilitation.

11.Girl Child.-The State shall develop and implement comprehensive policies, plans of action and programmes for the survival, protection,development and advancement of the girl-child to promote and protect the full enjoyment of her human rights and toensure equal opportunities for girls and all these plans should form an integral part of the total development process.

(2) The State shall ensure elimination all forms of discrimination against the girl-child which result in harmful andunethical practices, such as pre-natal sex selection and female foeticide and infanticide and towards this theState shall promote and support all endeavours that help give the girl child a sense of self-esteem, which wouldinclude gender sensitisation programmes at all levels. Special attention will be focused on taking strict actionagainst eve teasing and on all conditions which create an unsafe atmosphere for girls.

(3) The State shall encourage educational institutions and the media to adopt and project non-stereo typed imagesof girl and boys and to eliminate child pornography and degrading and violent portrayals of the girl-child;

(4) The State shall ensure dissemination of information and education to girls, regarding the physiology of reproduction,reproductive and sexual health.

12.Differently Abled Children.-(1) The State shall endeavour to ensure that disabilities which can be prevented in children are prevented. Schemes

to take timely preventive measures may be introduced and these may separately cover women during pregnancy,mothers during lactation, children below the age of one, children between the ages of one and six years, andadolescent boys and girls. Initiatives may include mandatory screening of all new born babies and rubella vaccinationof all pregnant women;

(2) The census of all disabled children in the State shall be updated;(3) As far as possible, appropriate initiatives for each child shall be taken in a time bound manner to be prescribed;(4) A scheme for providing counseling and support to parents of differently abled children shall be launched.



(5) A special plan of action on prevention, early detection and early intervention programs, inclusive education andvocational training, central//institutional and community based programmes shall be evolved by the State at theearliest.

13. Other Provisions.-(1) The Government shall create the State Children’s Fund for raising and coordinating resources for achieving the

purposes of this Act.(2) There shall be credited to the fund such voluntary donations, contributions or subscriptions as may be made by

any individual or organization.(3) All fines imposed under this Act shall be credited to the Fund.(4) The fund created under sub-section (1) above shall be administered in such manner and for such purposes as may

be prescribed.(5) There shall be a State Level Authority which may be called the State Commission for Children to promote and

maintain the best interests of all the children in Goa and which will carry out such functions as may be prescribed.The functions may include the following:-

(a) The creation of a Child Friendly Society;(b) Preparing and implementing a systematic plan for spreading awareness amongst different groups,

mobilization action and dialogue within civil society on Child Rights;(c) Develop a capacity development strategy for the progressive implementation of Child Rights covering

amongst others the training of teachers, police, judiciary etc.;(d) Review all State Legislations, Rules, Orders, Notifications, Schemes and all other provisions pertaining to

children and recommend necessary amendments therein, to ensure that the Rights of the Child are protected;(e) To monitor the implementation of the Convention on the Rights of the Child;(f) To ensure that children become fit citizens and that all children are given the opportunity and encouraged

to learn and develop thinking and participatory skills as well as skills of developing and articulating ideas;(g) Set up a mechanism to hear complaints from child victims;(h) Establish norms for good parenting and evolve a strategy for achieving this;(i) Undertake and promote research in the field of Child Rights;(j) Prepare disaggregated data on all children in Goa in terms of category, age, sex, etc.;(k) Examine the situation regarding children particularly the status of the girl child, assess the reasons for

discrimination and recommend strategies for their removal;(6) The State Level Authority shall be constituted within a period of six months from the commencement of this Act.(7) For finalizing all the Plans of Action, Government shall set up separate Steering Committees comprising persons

with experience in that particular area, social workers, Government officers and others. Officers of the CentralGovernment should participate in the deliberations leading up to the Plans, and Government shall carry out visitsto other States to see best practices specially in terms of rehabilitation, education and integration of children.The Steering Committees shall oversee the implementation of the Plans of Action.

(8) There shall be a Village Child Committee which shall be constituted by each village panchayat. The committeeshall comprise not less than five persons of whom one shall be a child above the age of 15 years and the othermembers shall comprise representatives from the village panchayat and social workers of whom at least 2 shouldbe women. The Village Child Committee shall ensure the best interests of the child and will pay particularattention to providing recreational and play facilities for children. The Village Committees will also interact withthe departments of the State Government in the implementation of the Plans of Action for elimination of childilliteracy, children on the streets, child prostitution and child labour, and will carry out such other functions asmay be laid out from time to time.

(9) There shall be 4 or more such Child Committees in each Municipal/ Corporation areas.(10) The Government shall institute a system for recognizing and recording appreciation of outstanding work done by

individuals, organizations or departments in achieving the best Interests of the Child under this Act.(11) The Government shall carry out an awareness campaign after the commencement of this Act to appraise the

public about the provisions and to solicit their cooperation. Sustained media advocacy will be taken up withNGOs, Women’s Groups and others to create public awareness on the issues involved. Doordarshan, the PrintMedia, Radio, Private Television Channels and cable networks and all other forms of media will be used.

(12) Appropriate guidelines for the protection of children from information and material injurious to their well beingas well as harmful exposure in the mass media shall be prepared and implemented. For this purpose, the Government,with the assistance of the State Information Department, shall set up a State Council comprising of persons fromthe media, and others, as may be prescribed.

(13) All persons appointed by the Government under this Act as Members of District Inspection Teams, Task Forces,Authorized Officers and others shall be persons with the highest credentials and integrity. Their proposedappointment and details shall be printed in the Official Gazette wherever they are non-Government staff and themembers of the public shall be given two week’s time to file any complaint against any proposed appointment.The Government shall consider all complaints received before reaching a final decision and the appointmentsmade will be notified in the Official Gazette.

(14) The Police Department shall formulate an exclusive Child Code including issues of Child Friendly Police Stations,interaction and behaviour with children, mandatory sensitization programmes, etc.

(15) The Government shall constitute a Special Advisory Group to suggest ways to protect children from the harmfulinfluences of the internet. The Special Advisory Group shall include, amongst others, experts in the field andmembers of the police.



(16) No child below the age of 14 shall be allowed unaccompanied inside any cyber café or any other establishmentwhich provides any computer services to the general public against a cost.

(17) All establishments providing training to children through computers shall ensure that child friendly safeguardsare installed and that no child below the age of fourteen has access to internet facilities other than in thepresence of an adult from that establishment.

(18) The owners of such establishments under sub-sections 16 and 17 will be held responsible in case any child isaccessing material or sites unsuitable for children.

(19) All such establishments under sub-sections 16 and 17 shall make their premises freely available to the SpecialOfficers for inspection at any time.

(20) The use of children in the illicit procurement, trafficking and sale of narcotic, psychotropic and alcoholic substancesis prohibited and anyone found guilty of transgression shall be severely punished.

(21) Anyone inducing a child to gamble or to assist in the gambling trade shall be liable to a punishment of imprisonmentof either description for a period of not less than one year and a fine of not less than rupees fifty thousand.

(22) The State shall make special provision for the children of prisoners and commercial sex workers.(23) The Competent Authority shall have the power to direct any registered Children’s Home to accept any child/

children in distress provided that the said Home has the facilities for taking care of the extra child/children.(24) The decision of the Competent Authority as to who is a “ Child” shall be final and binding.

14. Violation and Penalties.-(1) The following shall be deemed to be violations of the Rights of the Child:-

(a) non-adherence to or violation of any of the provisions of this Act including those in Section 3.(b) If the Competent Authority is satisfied, after considering the facts and for reasons to be recorded in

writing, that any act of omission or commission constitutes a non-adherence to or violation of any of theprovisions of this Act including those in Section 3.

(2) There shall be a Competent Authority which for the purpose of this Act shall be the Secretary to the Governmentin charge of the Department of Women and Child Development.

(3) The Competent Authority shall have the power to impose penalties for any violation ranging from Rs. 100/- to Rs.50,000/- on every occasion.

(4) If such fine is imposed on any Government servant for violation of the rights of a child, the fine so imposed shallbe paid by the defaulting employee or recovered from his salary or wages.

(5) The decision of the Competent Authority as to whether an action or inaction constitutes a violation of the rightsof the child shall be final and binding.

(6) The Competent Authority may, by special order or notification, entrust any or all of its powers and functions onsuch officers of the Government who shall be designated as Special Officers under the Act.

(7) The Government may notify Authorised Officers who will have the power to entertain complaints regardingviolations of the rights of a child. The Authorised Officers may call for information from any person in Goaregarding such violations. Authorised Officers shall submit their report on each violation, with recommendationsand justifications for the same, to the Competent Authority.

(8) The Competent Authority may take action under the provisions of this Act in any case of a child.(9) Information regarding violation.- Any person may give information of a violation to an Authorised Officer, to the

Director, to the Competent Authority or a Special Officer.

15. Powers of the Competent Authority.-(1) If the Competent Authority is satisfied, whether upon information received or otherwise, of the violation of the

rights of a child, he shall issue a notice, requiring the person or persons who the Competent Authority deems tobe responsible for the violation and/or if that person or persons cannot be found then the employer, superiorofficer, relatives or any other person or persons who the Competent Authority is satisfied as to be responsible forthe violation, and take one or more of the following steps, within a period as may be fixed in the notice, and notexceeding sixty days in any case:-

(a) to dismiss the reference;(b) direct the person or persons to take such steps as may be necessary in the best interests of the child;(c) to levy a penalty (fine);(d) refer the matter to any other authority including the Police;(e) any other action the Competent Authority may deem fit and necessary including calling the person(s) for

a personal hearing and directing that a child be removed:Provided that the Competent Authority, for reasons to be recorded in writing, may extend the periodspecified in such notice.

(2) The Officer-in-charge of the Police Station of the area concerned where the violation reportedly took place shallbe duty bound and responsible, when called upon by the Competent Authority or any Special Officer to provide allpossible assistance including removing a child. The officer-in-charge of the police station, shall be answerableand responsible for non-compliance of the requisition made by the Competent Authority or by any Special Officer.

(3) The failure to comply with the directions contained in the notice under sub-section (1) shall be cognizableoffence punishable with simple imprisonment for a term which may extend to 30 days or with fine which mayextend to Rs. 5000/-, or with both:Provided that this failure may be compounded by the Competent Authority, if the person agrees to pay a fine ofRs. 5,000/- in the first instance and Rs. 10,000/- in the second instance only. Provided further that this will notprejudice proceedings as per sub-section (1) of this Section.



(4) The Competent Authority or any Special Officer may enter and inspect any premises for the purpose of enforcingany of the provisions contained in this Act including removal of a child from such premises.Provided that-

(a) no such entry shall normally be made between sunset and sunrise except when the circumstances sowarrant e.g. rescue of a child prostitute who has to work during night hours;

(b) all such entries shall be made by a group of a minimum of 4 persons to be prescribed, which shall includeat least two women;

16. Penalty for preventing entry of the Competent Authority or Special Officer.- Every person who prevents theCompetent Authority or any Special Officer from exercising his lawful power of entering thereon or there into, shall bepunished with simple imprisonment for a term which may extend to one month or with fine which may extend to fivethousand rupees, or with both.

17. Competent Authority’s powers in case of default.- If the person on whom a notice is served under sub-section (1)of Section 15 refuses to take necessary action as specified in such notice within the time specified therein, the CompetentAuthority may himself take such measures or adopt such treatment and recover the cost of doing so from such person asthe Competent Authority may decide including the employer or relative of the person, in the form of salary or wages,property tax or any other tax.

18. Appeal against the decision of Competent Authority.- An appeal against any decision of the Competent Authorityshall lie to the Chief Secretary.

19. Method of serving notices.-(1) The notice under Sub-Section (1) of Section 15 shall be given-

(a) by giving or tendering the notice to such person; or(b) if such person is not found, by leaving such notice at his last known place of abode or business or by

giving or tendering the same to some adult member or servant of his family; or(c) if such persons does not reside in the local area and his address elsewhere is known to the local authority,

by sending the same to him by post, registered; or(d) if none of the means aforesaid be available, by affixing the same in some conspicuous part of such place

of abode or business.

20. Cognizance of offences against Act.- No person shall be tried for any offence against the provisions of this Act, orany rule, made there under, unless complaint is made by the Police, or the Competent Authority or a Special Officer orby a person expressly authorized in this behalf by the Government:

21. Powers to compound offences.- The Competent Authority may compound any violation against this Act or the rulesmade there under which may, by notification in the Official Gazette be declared compoundable.

22. Power to police officers to arrest offenders against Act, etc.- Any police officer who sees a person committing aviolation against any of the provisions of this Act or of any rules made there under, may arrest such person.

23. Powers of the Special Officer to arrest offender against Act, etc.- Any Special Officer who sees a person committinga violation against any of the provisions of this Act may arrest such person. Any person so arrested shall be handed overto the officer-in-charge of the nearest police station as expeditiously as possible.

24. Procedure after arrest.- Any person arrested for an offence under this Act shall be informed, as soon as may be, ofthe grounds for such arrest and shall be produced before the nearest Magistrate within a period of twenty four hours ofsuch arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and nosuch person shall be detained in custody beyond the said period without the authority of a Magistrate.

25. Punishment for malicious abuse of powers.- Any person who maliciously abuses any powers conferred on him by,or under this Act shall be punished with imprisonment which may extend to one year or with fine which may extend toone thousand rupees or with both.

26. Delegation of powers by Government and Competent authority.-The Government or the competent authority, asthe case may be, may, by notification and subject to any restrictions, limitation and conditions specified therein,authorize any person to exercise any one or more of the powers vested in them by this Act and may in like mannerwithdraw such authority:

Provided that nothing contained in this section shall apply to any powers of the Government to make rules under thisAct.

27. Children’s Court.-(1) The State Government shall, after consultation with the High Court, by Notification in the Official Gazette,

constitute a Children’s Court for the State of Goa.(2) In all aspects of its functioning, the Children’s Court shall be guided at all times by the best interests of the child



and all its procedures, the office, the dress worn by the Members of the legal profession and all others shall beconsciously and deliberately Child friendly.

28. Composition of the Children’s Court.-The Children’s Court shall consist of-

(a) a person who is or has been or is qualified to be a District Judge, who shall be its President:Provided that no appointment under this section shall be made except after consultation with the High Court;and

(b) a Jury of at least 3 persons.

29. Term of Office.-(1) The President of the Children’s Court shall hold office for a term of five years or upto the age of 65 years,

whichever is earlier, and shall not be eligible for reappointment: Provided that he may resign his office in writingunder his hand-addressed to the State Government and on such resignation being accepted, his office shallbecome vacant and may be filled by the appointment of a person possessing the same qualifications.

(2) The salary or honorarium and other allowances payable to and the other terms and conditions of service of thePresident and the Jury members of the Children’s Court shall be as may be prescribed.

(3) The Government shall frame rules regarding the detailed functioning and procedure of the Children’s Court, thequalifications and terms of office and other conditions regarding the Jury members, the procedures governingtrial by jury and all other related matters.

30. Jurisdiction of the Children’s Court.-(1) Subject to the provisions of this Act, the Children’s Court shall have jurisdiction to try all offences against

children whether such offence is specified under this Act or not;(2) The quorum for the proceedings of the Children’s Court shall be the President and one Jury Member;(3) The powers of the Competent Authority and the Special Officers under this Act shall not fall within the jurisdiction

of the Children’s Court.

31. Powers of the Children’s Court.-(1) The Children’s Court shall have all the powers of -

(a) the Court of Sessions under the Code of Criminal Procedure, 1973 (2 of 1974);(b) a Civil Court for the purpose of summoning and enforcing the attendance of witnesses, compelling the

discovery and production of documents and material objects, and administering oath and recording evidence.(2) Every proceeding of the Children’s Court shall be deemed to be a judicial proceeding within the meaning of

sections 195 and 228 of the Indian Penal Code, 1860 (45 of 1860).

32. Procedure of the Children’s Court.-(1) The Children’s Court shall follow such procedure as may be prescribed:

Provided that the procedure so prescribed shall be child friendly and shall be deemed to include the following.-(a) Age of Innocence : A child is presumed to be innocent of any malafide or criminal intent upto the age of

7 years in all cases and upto 12 years in cases wherein he is unable to understand the consequences of hisaction on account of immaturity of understanding.

(b) Procedural Protection of Innocence: Procedural safe-guards shall be guaranteed to protect the presumptionof innocence;

(c) Provision of Legal Aid: To protect the child’s right to and presumption of innocence, provisions shall bemade, when needed, for free legal aid;

(c) Avoidance of harm: At all stages, from the initial contact till disposition, extreme care shall be taken toavoid any harm to the sensitivity of the child.

(d) Principle of Best interest: This principle seeks to ensure physical, emotional, intellectual, social and moraldevelopment of the child, so as to make him a useful and good citizen by ameliorating the impediments tohealthy development.

(e) Principle of non-stigmatizing semantics, decisions and actions: Non-stigmatizing semantics must be strictlyadhered to, and the use of adversarial or accusatory words, such as, arrest, remand, accused, charge sheet,trial, prosecution, warrant, summons, conviction, inmate, delinquent, neglected, custody, etc., is prohibitedin the processes pertaining to the child under this Act.

(f) Principles of non-waiver of rights: No waiver of rights of the child, whether by himself or the competentauthority or anyone acting or claiming to act on behalf of the child is either permissible or valid. Non-exercise of a fundamental right does not amount to waiver.

(h) Principle of equality: Equality of access, equality of opportunity, equality under the said Act, is guaranteedto the child; and as such there shall be no discrimination on the basis of age, sex, place of birth, disability,race, ethnicity, status, caste, cultural practices, work, activity or behaviour of the child or that of hisparents or guardians, or the civil and political status of the child.

(i) Principle of right to privacy and confidentiality: The child’s rights to privacy and confidentiality shall beprotected by all means and through all stages of the proceedings.

(j) Principle of Fresh Start: The principle of fresh start promotes new beginning for the child by ensuringerasure of his past records.



(k) Principle of last resort : Institutionalization of a child will be the last resort after reasonable enquiry andthat too for the minimum possible duration.

(l) Burden of Proof : Whenever any offence is alleged to have been committed against a child, the burden ofproving that such offence has not been committed by the accused shall lie on the accused.

(m) Procedure for Children’s evidence: Whenever a child who is a victim of a crime is required to depose beforeany authority including this Court, the child shall not be exposed to the presence of the accused or theperpetrators of the crime.

(n) Cross examination of child witness: Whenever there is a need to cross examine a child witness, care shallbe taken to see that the tender age or in case of a victim, the psychological condition of the child is takeninto consideration and the Children’s Court may adopt such procedures which are fair and suitable to thechild.

(o) Deposit of fine prior to trial : Whenever the offence alleged involves a fine, in order to ensure the attendanceof the accused during the proceedings and compliance of the Court’s directives and others thereafter, theCourt may direct the accused to deposit 75% of the maximum fine leviable for that offence at the beginningof the trial itself.

2) In all dealings with children, the Children’s Court shall follow the following guidelines:-(a) Child victims/witnesses are informed of their role in regard to court proceedings;(b) Their views are allowed to be heard and respected;(c) Inconvenience to them is minimized and their privacy is respected;(d) Delays in the proceedings are reduced;(e) Aggressive questioning or cross examination of child victims is avoided and the same, if necessary, is done

through the judge;(f) Provisions are made for trials in camera;(g) The identity of the child victim is protected;(h) Child victims are prepared for the judicial process and prosecution of alleged abusers is not rushed if a

child is not ready to go to court;(i) The investigator ascertains the need for medical examination of the child victim and when examination is

undertaken, ensures that multiple re-examination is avoided;(j) The medical examination should be conducted in the presence of the parent/guardian and social worker/

counsellor as far as possible;(k) Child’s testimony should be recorded in the presence of a social worker/counsellor as early as possible

after the abusive incident with other witnesses at hand;(l) Adequate translation/ interpretations and translators/ interpreters who are sensitive to the children’s

needs should be provided wherever needed.(m) In case of a mentally challenged child, the competent service provider should depose on behalf of the

child;(n) The special needs of the child victims/witnesses should be catered for. These should include the following:-

(i) Enable children to familiarise themselves with the court surroundings;(ii) Inform children of the different roles of the key persons at court, such as the judge, the defence

lawyer and the prosecutor;(iii) Inform the court of the special needs of children in general and of individual children in specific

cases;(iv) Help children to be comfortable in the proceedings;(v) Encourage questionings to be short and clear so as not confuse child witnesses;(vi) Permit children below eight years of age to respond to leading questions facilitated by a social

worker.

33.Offences to be cognizable.- Not withstanding anything contained in the Code of Criminal Procedure, 1973 ( 2 of1974 ) any offence punishable under this Act shall be cognizable.

34. Exclusion.- No other Court, civil or criminal, shall have jurisdiction to decide or deal with any offence or anyquestion or any dispute or any liability which by or under this Act is to be decided by the Children’s Court, except byappeal to the High Court or Supreme Court.

35.Act to override Laws.- Save as otherwise provided in this Act, the provisions of this Act shall have effectnotwithstanding anything inconsistent therewith contained in any other law for the time being in force or any customor usage or any instrument having effect by virtue of any such law.

36. Duty of Government to ensure effective implementation of the Act.- The State Government shall take suchmeasures as may be necessary for the effective implementation of this Act.

37. Powers to make rules.- The State Government may by notification in the Official Gazette, make rules for carryingout the purposes of this Act.



38. Power to remove difficulties.-(1) If any difficulty arises in giving effect to the provisions of this Act, the Government may by Order published in

the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to benecessary or expedient for removal of the difficulty:Provided that no order shall be made under this section after the expiry of two years from the commencement ofthis Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before the State Legislature.

39. Jurisdiction of Civil Courts barred.-No Civil Court shall have jurisdiction in respect of any matter in relation to which the Competent Authority or theDirector or any other person authorized by the Competent Authority or authority appointed or specified by or under thisAct, is empowered by or under this Act to exercise any power, and no injunction shall be granted by any Civil Court inrespect of anything which is done or intended to be done by or under this Act.

40. Protection of action taken in good faith.-No suit, prosecution or other legal proceedings shall lie against the Competent Authority, Director or any other personauthorized by the Competent Authority or Director for anything which is done in good faith or intended to be done inpursuance of this Act or any rule made there under.

41. Bar of suits and prosecutions.-No suit, prosecution or other proceedings shall lie against the Government or any officer of the Government, or againstany person appointed under this Act, for any act done or purporting to be done under this Act, without the previoussanction of the Government.



ENDNOTESThe Indian Evidence Act, 1872

i 114-A. Presumption as to the absence of consent in certain prosecution for rapeIn a prosecution for rape under clause (a) or clause (b) clause (c) or clause (d) or clause (e) or clause (g)of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by theaccused is proved and the question is whether it was without the consent of the woman alleged to havebeen raped, and she states in her evidence before the court that she did not consent, the court shallpresume that she did not consent.

The Indian Penal Code, 1860ii 354. Assault or criminal force to woman with intent to outrage her modesty

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likelythat he will thereby outrage her modesty, shall be punished with imprisonment of either description fora term which may extend to two years, or with fine, or with both.

iii 355. Assault or criminal force with intent to dishonour person, otherwise than on grave provocationWhoever assaults or uses criminal force to any person, intending thereby to dishonour that person,otherwise than on grave and sudden provocation given by that person, shall be punished withimprisonment of either description for a term which may extend to two years, or with fine, or withboth.

iv 509. Word, gesture or act intended to insult the modesty of a womanWhoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture,or exhibits any object, intending that such word or sound shall be heard, or that such gesture or objectshall be seen by such woman, or intrudes upon the privacy of such woman, shall be punished withsimple imprisonment for a term which may extend to one year, or with fine, or with both.

v 499. DefamationWhoever, by words either spoken or intended to be read, or by signs or by visible representations,makes or publishes any imputation concerning any person intending to harm, or knowing or havingreason to believe that such imputation will harm the reputation of such person, is said, except in thecases hereinafter excepted, to defame that person.Explanation 1- It may amount to defamation to impute anything to a deceased person, if the imputationwould harm the reputation of that person if living, and is intended to be hurtful to the feelings of hisfamily or other near relatives.Explanation 2- It may amount to defamation to make an imputation concerning a company or anassociation or collection of persons as such.Explanation 3- An imputation in the form of an alternative or expressed ironically, may amount todefamation.Explanation 4- No imputation is said to harm a person’s reputation, unless that imputation directly orindirectly, in the estimation of others, lowers the moral or intellectual character of that person, orlowers the character of that person in respect of his caste or of his calling, or lowers the credit of thatperson, or causes it to be believed that the body of that person is in a loathsome state, or in a stategenerally considered as disgraceful.First Exception.—Imputation of truth which public good requires to be made or publishedIt is not defamation to impute anything which is true concerning any person, if it be for the publicgood that the imputation should be made or published. Whether or not it is for the public good is aquestion of fact.Second Exception.—Public conduct of public servantsIt is not defamation to express in a good faith any opinion whatever respecting the conduct of a publicservant in the discharge of his public functions, or respecting his character, so far as his characterappears in that conduct, and no further.Third Exception.—Conduct of any person touching any public questionIt is not defamation to express in good faith any opinion whatever respecting the conduct of anyperson touching any public question, and respecting his character, so far as his character appears inthat conduct, and no further.



Fourth Exception.—Publication of reports of proceedings of CourtsIt is not defamation to publish substantially true report of the proceedings of a Court of Justice, or ofthe result of any such proceedings.Explanation.—A Justice of the Peace or other officer holding an inquiry in open Court preliminary to atrial in a Court of Justice, is a Court within the meaning of the above section.Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concernedIt is not defamation to express in good faith any opinion whatever respecting the merits of any case,civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any personas a party, witness or agent, in any such case, or respecting the character of such person, as far as hischaracter appears in that conduct, and no further.Sixth Exception.—Merits of public performanceIt is not defamation to express in good faith any opinion respecting the merits of any performancewhich its author has submitted to the judgment of the public, or respecting the character of the authorso far as his character appears in such performance, and no further.Explanation.—A performance may be submitted to the judgment of the public expressly or by acts onthe part of the author which imply such submission to the judgment of the public.Seventh Exception.—Censure passed in good faith by person having lawful authority over anotherIt is not defamation in a person having over another any authority, either conferred by law or arisingout of a lawful contract made with that other, to pass in good faith any censure on the conduct of thatother in matters to which such lawful authority relates.Eight Exception.—Accusation preferred in good faith to authorized personIt is not defamation to prefer in good faith an accusation against any person to any of those who havelawful authority over that person with respect to the subject-matter of accusation.Ninth Exception.—Imputation made in good faith by person for protection of his or other’sinterestsIt is not defamation to make an imputation on the character of another provided that the imputationbe made in good faith for the protection of the interests of the person making it, or of any otherperson, or for the public good.Tenth Exception.—Caution intended for good of person to whom conveyed or for public goodIt is not defamation to convey a caution, in good faith, to one person against another, provided thatsuch caution be intended for the good of the person to whom it is conveyed, or of some person in whomthat person is interested, or for the public good.

500. Punishment for defamation.Whoever defames another shall be punished with simple imprisonment for a term which may extend totwo years, or with fine, or with both

The Immoral Traffic (Prevention) Act, 1956vi 3. Punishment for keeping a brothel or allowing premises to be used as a brothel

(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothelshall be punishable on first conviction with rigorous imprisonment for a term of not less than one yearand not more than three years and also with fine which may extend to two thousand rupees and in theevent of a second or subsequent conviction, with rigorous imprisonment for a term of not less than twoyears and not more than five years and also with fine which may extend to two thousand rupees.(2) Any person who-(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allowsany other person to use, such premises or any part thereof as a brothel, or(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord,lets the same or any part thereof with the knowledge that the same or any part thereof is intended tobe used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel,shall be punishable on first conviction with imprisonment for a term which may extend to two yearsand with fine which may extend to two thousand rupees and in the event of a second or subsequentconviction, with rigorous imprisonment for a term which may extend to five years and also with fine.(2A) For the purposes of sub-section (2), it shall be presumed until the contrary is proved, that anyperson referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises or



any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or anypart thereof are being used as a brothel, if,-(a) a report is published in a newspaper having circulation in the area in which such person resides tothe effect that the premises or any part thereof have been found to be used for prostitution as a resultof a search made under this Act; or(b) a copy of the list of all things found during the search referred to in clause (a) is given to suchperson.(3) Notwithstanding anything contained in any other law for the time being in force, on conviction ofany person referred to in clause (a) or clause (b) of sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which suchpremises have been leased out or are held or occupied at the time of the commission of the offence,shall become void and inoperative with effect from the date of the said conviction.

vii 4. Punishment for living on the earnings of prostitution(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earningsof the prostitution of any other person shall be punishable with imprisonment for a term which mayextend to two years, or with fine which may extend to one thousand rupees, or with both, and wheresuch earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment fora term of not less than seven years and not more than ten years.(2) Where any person over the age of eighteen years is proved -(a) to be living with, or to be habitually in the company of, a prostitute; or(b) to have exercised control, direction, or influence over the movements of a prostitute in such amanner as to show that such person is aiding, abetting or compelling her prostitution; or(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary isproved, that such person is knowingly living on the earnings of prostitution of another person withinthe meaning of sub-section (1).

viii 5. Procuring, inducing or taking person for the sake of prostitution(1) Any person who-(a) procures or attempts to procure a person, whether with or without his consent, for the purpose ofprostitution; or(b) induces a person to go from any place, with the intent that he may for the purpose of prostitutionbecome the inmate of, or frequent, a brothel; or(c) takes or attempts to take a person, or causes a person to be taken, from one place to another witha view to his carrying on, or being brought up to carry on prostitution; or(d) causes or induces a person to carry on prostitution; shall be punishable on conviction with rigorousimprisonment for a term of not less than three years and not more than seven years and also with finewhich may extend to two thousand rupees, and if any offence under this sub-section is committedagainst the will of any person, the punishment of imprisonment for a term of seven years shall extendto imprisonment for a term of fourteen years:

Provided that if the person in respect of whom an offence committed under this sub-section,—(i) is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment fora term of not less than seven years but may extend to life; and(ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonmentfor a term of not less than seven years and not more than fourteen years;(3) An offence under this section shall be triable—(a) in the place from which a person is procured, induced to go, taken or caused to be taken, or fromwhich an attempt to procure or take such person is made; or(b) in the place to which he may have gone as a result of the inducement or to which he is taken orcaused to be taken or an attempt to take him is made.

ix 6. Detaining a person in premises where prostitution is carried on(1) Any person who detains any other person, whether with or without his consent,—(a) in any brothel, or



(b) in or upon any premises with intent that such person may have sexual intercourse with a personwho is not the spouse of such person, shall be punishable on conviction, with imprisonment of eitherdescription for a term which shall not be less than seven years but which may be for life or for a termwhich may extend to ten years and shall also be liable to fine:Provided that the court may, for adequate and special reasons to be mentioned in the judgment, imposea sentence of imprisonment for a term of less than seven years.(2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary isproved, that he has committed an offence under sub-section (1).(2A) Where a child or minor found in a brothel is, on medical examination, detected to have beensexually abused, it shall be presumed, unless the contrary is proved, that the child or minor has beendetained for purposes of prostitution or, as the case may be, has been sexually exploited for commercialpurposes.(3) A person shall be presumed to detain a woman or girl in a brothel or in or upon any premises for thepurpose of sexual intercourse with a man other than her lawful husband, if such person, with intent tocompel or induce her to remain there—(a) withholds from her any jewellery, wearing apparel, money, or other property belonging to her, or(b) threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel,money, or other property lent or supplied to her by or by the direction of such person.(4) Notwithstanding any law to the contrary, no suit, prosecution, or other legal proceeding shall lieagainst such woman or girl at the instance of the person by whom she has been detained, for therecovery of any jewellery, wearing apparel or other properly alleged to have been lent or supplied to, orfor, such woman or girl, or to have been pledged by such woman or girl, or for the recovery of anymoney alleged to be payable by such woman or girl.

x 7. Prostitution in or in the vicinity of public places

(1) Any person, who carries on prostitution and the person with whom such prostitution is carried on,in any premises,—

(a) which are within the area or areas, notified under sub-section (3), or

(b) which are within a distance of two hundred metres of any place of public religious worship, educationalinstitution, hostel, hospital, nursing home, or such other public place of any kind as may be notified inthis behalf by the Commissioner of Police or Magistrate in the manner prescribed, shall be punishablewith imprisonment for a term which may extend to three months.

(1A) Where an offence committed under sub-section (1) is in respect of a child or minor, the personcommitting the offence shall he punishable with imprisonment of either description for a term whichshall not be less than seven years but which may be for life or for a term which may extend to ten yearsand shall also be liable to fine;

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, imposea sentence of imprisonment for a term of less than seven years.

(2) Any person who—

(a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade toresort to or remain in such place; or

(b) being the tenant, lessee, occupier, or person in charge of any premises referred to in sub-section (1)knowingly permits the same or any part thereof to be used for prostitution; or

(c) being the owner, lessor, or landlord, of any premises referred to in sub-section (1), or the agent ofsuch owner, lessor, or landlord, lets the same or any part thereof with the knowledge that the same orany part thereof may be used for prostitution, or is willfully a party to such use, shall be punishable onfirst conviction with imprisonment for a term which may extend to three months or with fine whichmay extend to two hundred rupees, or with both; and in the event of a second or subsequent conviction,with imprisonment for a term which may extend to six months and also with fine which may extend totwo hundred rupees, and if the public place or premises happen to be a hotel, the licence for carryingon the business of such hotel under any law for the time being in force shall also be liable to besuspended for a period of not less than three months, but which may extend to one year:

Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel,such licence shall also be liable to be cancelled.



Explanation.—For the purposes of this sub-section, ‘hotel’ shall have the meaning as in clause (6) ofsection 2 of the Hotel Receipts Tax Act, 1980 (54 of 1980).

(3) The State Government may, having regard to the kinds of persons frequenting any area or areas inthe State, the nature and the density of population therein and other relevant considerations, bynotification in the Official Gazette, direct that prostitution shall not be carried on in such area or areasas may be specified in the notification.

(4) Where a notification is issued under sub-section (3) in respect of any area or areas, the StateGovernment shall define the limits of such area or areas in the notification with reasonable certainty.

(5) No such notification shall be issued so as to have effect from a date earlier than the expiry of aperiod of ninety days after the date on which it is issued.

xi 8. Seducing or soliciting for purpose of prostitutionWhoever, in any public place or within sight of, and in such manner as to be seen or heard from anypublic place, whether from within any building or house or not—(a) by words, gestures, willful exposure of his person (whether by sitting by a window or on the balconyof a building or house or in any other way), or otherwise tempts or endeavours to tempt, or attracts orendeavours to attract the attention of, any person for the purpose of prostitution; or(b) solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyanceto persons residing nearby or passing by such public place or to offend against public decency, for thepurpose of prostitution, shall be punishable on first conviction with imprisonment for a term whichmay extend to six months, or with fine which may extend to five hundred rupees, or with both, and inthe event of a second or subsequent conviction, with imprisonment for a term which may extend to oneyear, and also with fine which may extend to five hundred rupees:Provided that where an offence under this section is committed by a man, he shall be punishable withimprisonment for a period of not less than seven days but which may extend to three months.

xii 9. Seduction of a person in custodyAny person who, having the custody, charge or care of, or a position of authority over any person,causes or aids or abets the seduction for prostitution of that person shall be punishable on convictionwith imprisonment of either description for a term which shall not be less than seven years but whichmay be for life or for a term which may extend to ten years and shall also be liable to fine:Provided that the court may, for adequate and special reasons to be mentioned in the judgment, imposea sentence of imprisonment for a term of less than seven years.

xiii 14. Offences to be cognizableNotwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)], any offencepunishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code:Provided that, notwithstanding anything contained in that Code,-(i) arrest without warrant may be made only by the special police officer or under his direction orguidance, or subject to his prior approval;(ii) when the special police officer requires any officer subordinate to him to arrest without warrantotherwise than in his presence any person for an offence under this Act, he shall give that subordinateofficer an order in writing, specifying the person to be arrested and the offence for which the arrest isbeing made; and the latter officer before arresting the person shall inform him of the substance of theorder and, on being required by such person, show him the order;(iii) any police officer not below the rank of sub-inspector specially authorised by the special policeofficer may, if he has reason to believe that on account of delay involved in obtaining the order of thespecial police officer, any valuable evidence relating to any offence under this Act is likely to bedestroyed or concealed, or the person who has committed or is suspected to have committed theoffence is likely to escape, or if the name and address of such a person is unknown or there is reason tosuspect that a false name or address has been given, arrest the person concerned without such order,but in such a case he shall report, as soon as may be, to the special police officer the arrest and thecircumstances in which the arrest was made.

xiv 15. Search without warrant(1) Notwithstanding anything contained in any other law for the time being in force, whenever the



special police officer or the trafficking police officer, as the case may be, has reasonable grounds forbelieving that an offence punishable under this Act has been or is being committed in respect of aperson living in any premises, and that search of the premises with warrant cannot be made withoutundue delay, such officer may, after recording the grounds of his belief, enter and search such premiseswithout a warrant.(2) Before making a search under sub-section (1), the special police officer or the trafficking policeofficer, as the case may be, shall call upon two or more respectable inhabitants (at least one of whomshall be a woman) of the locality in which the place to be searched is situated, to attend and witnessthe search, and may issue an order in writing to them or any of them so to do:Provided that the requirement as to the respectable inhabitants being from the locality in which theplace to be searched is situated shall not apply to a woman required to attend and witness the search.(3) Any person who, without reasonable cause, refuses or neglects to attend and witness a search underthis section, when called upon to do so by an order in writing delivered or tendered to him, shall bedeemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860).(4) The special police officer or the trafficking police officer, as the case may be, entering any premisesunder sub-section (1) shall be entitled to remove therefrom all the persons found therein.(5) The special police officer or the trafficking police officer, as the case may be, after removing theperson under subsection (4) shall forthwith produce him before the appropriate Magistrate.(5A) Any person who is produced before a Magistrate under sub-section (5) shall be examined by aregistered medical practitioner for the purposes of determination of the age of such person, or for thedetection of any injuries as a result of sexual abuse or for the presence of any sexually transmitteddiseases.Explanation.—In this sub-section, ‘registered medical practitioner’ has the same meaning as in theIndian Medical Council Act, 1956 (102 of 1956).(6) The special police officer or the trafficking police officer, as the case may be, and other personstaking part in, or attending and witnessing a search, shall not be liable to any civil or criminal proceedingsagainst them in respect of anything lawfully done in connection with, or for the purpose of the search.(6A) The special police officer or the trafficking police officer, as the case may be, making a searchunder this section shall be accompanied by at least two women police officers, and where any woman orgirl removed under sub-section (4) is required to be interrogated, it shall be done by a woman policeofficer, and if no woman police officer is available, the interrogation shall be done only in the presenceof a lady member of a recognised welfare institution or organisation.Explanation.—For the purpose of this sub-section and section 17A, ‘recognised welfare institution ororganisation’ means such institution or organisation as may be recognised in this behalf by the StateGovernment.(7) The provisions of the Code of Criminal Procedure, 1973, (2 of 1974) shall so far as may be, apply toany search under this section as they apply to any search made under the authority of a warrant issuedunder section 94 of the said Code.

xv 13. Special police officer and advisory body(1) There shall be for each area to be specified by the State Government in this behalf a special policeofficer appointed by or on behalf of that government for dealing with offences under this Act in thatarea.(2) The special police officer shall not be below the rank of an Inspector of Police.(2A) The District Magistrate may, if he considers it necessary or expedient so to do, confer upon anyretired police or military officer all or any of the powers conferred by or under this Act on a specialpolice officer, with respect to particular cases or classes of cases or to cases generally:Provided that no such power shall be conferred on—(a) a retired police officer unless such officer, at the time of his retirement, was holding a post notbelow the rank of an inspector;(b) a retired military officer unless such officer, at the time of his retirement, was holding a post notbelow the rank of a commissioned officer.(3) For the efficient discharge of his functions in relation to offences under this Act—(a) the special police officer of an area shall be assisted by such number of subordinate police officers(including women police officers wherever practicable) as the State Government may think fit; and(b) the State Government may associate with the special police officer a non-official advisory body



consisting of not more than five leading social welfare workers of that area (including women socialwelfare workers wherever practicable) to advise him on questions of general importance regarding theworking of this Act.(4) The Central Government may, for the purpose of investigating any offence under this Act or underany other law for the time being in force dealing with sexual exploitation of persons and committed inmore than one State, appoint such number of police officers as trafficking police officers and they shallexercise all the powers and discharge all the functions as are exercisable by special police officers underthis Act with the modification that they shall exercise such powers and discharge such functions inrelation to the whole of India.

xvi 16. Rescue of person.(1) Where a magistrate has reason to believe from information received from the police or from anyother person authorised by the State Government in this behalf or otherwise, that any person is living,or is carrying on, or is being made to carry on, prostitution in a brothel, he may direct a police officernot below the rank of a sub-inspector to enter such brothel, and to remove therefrom such person andproduce him before him.(2) The police officer, after removing the person, shall forthwith produce him before the magistrateissuing the order.

xvii 18. Closure of brothel and eviction of offenders from the premises.(1) A magistrate may, on receipt of information from the police or otherwise, that any house, room,place or any portion thereof within a distance of two hundred metres of any public place referred to insub-section (1) of section 7, is being run or used as a brothel by any person or is being used byprostitutes for carrying on their trade, issue notice on the owner, lessor or landlord of such house,room, place or portion or the agent of the owner, lessor or landlord or on the tenant, lessee, occupierof, or any other person in charge of such house, room, place, or portion, to show cause within sevendays of the receipt of the notice why the same should not be attached for improper use thereof; and if,after hearing the person concerned, the magistrate is satisfied that the house, room, place, or portionis being used as a brothel or for carrying on prostitution, then the magistrate may pass orders—(a) directing eviction of the occupier within seven days of the passing of the order from the house,room, place or portion;(b) directing that before letting it out during the period of one year, or in a case where a child or minorhas been found in such house, room, place or portion during a search under section 15, during theperiod of three years, immediately after the passing of the order, the owner, lessor, or landlord, or theagent of the owner, lessor, or landlord shall obtain the previous approval of the magistrate:Provided that, if the magistrate finds that the owner, lessor or landlord as well as the agent of theowner, lessor or landlord, was innocent of the improper user of the house, room, place or portion, hemay cause the same to be restored to the owner, lessor or landlord, or the agent of the owner, lessor orlandlord, with a direction that the house, room, place or portion shall not be leased out, or otherwisegiven possession of, to or for the benefit of the person who was allowing the improper use therein.(2) A court convicting a person of any offence under section 3 or section 7 may pass order under sub-section (1) without further notice to such person to show cause as required in that sub-section.(3) Orders passed by the magistrate or court under sub-section (1) or sub-section (2) shall not besubject to appeal and shall not be stayed or set aside by the order of any court, civil or criminal, andthe said orders shall cease to have validity after the expiry of one year or three years, as the case maybe:Provided that where a conviction under section 3 or section 7 is set aside on appeal on the ground thatsuch house, room, place or any portion thereof is not being run or used as a brothel, or is not beingused by prostitutes for carrying on their trade, any order passed by the trial court under sub-section (1)shall also be set aside.(4) Notwithstanding anything contained in any other law for the time being in force, when a magistratepasses an order under sub-section (1), or a court passes an order under sub-section (2), any lease oragreement under which the house, room, place or portion is occupied at the time shall become void andinoperative.(5) When an owner, lessor or landlord, or the agent of such owner, lessor, or landlord fails to complywith a direction given under clause (b) of sub-section (1), he shall be punishable with fine which may



extend to five hundred rupees, or when he fails to comply with a direction under the proviso to thatsub-section, he shall be deemed to have committed an offence under clause (b) of sub-section (2) ofsection 3 or clause (c) of sub-section (2) of section 7, as the case may be, and punished accordingly.

Indian Penal Code, 1860xviii 366A. Procuration of minor girl

Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go fromany place or to do any act with intent that such girl may be, or knowing that it is likely that she willbe, forced or seduced to illicit intercourse with another person, shall be punishable with imprisonmentwhich may extend to ten years, and shall also be liable to fine

xix 372. Selling minor for purposes of prostitution, etc.Whoever sells, lets to hire, or otherwise disposes of any person under the age of eighteen years withintent that such person shall at any age be employed or used for the purpose of prostitution or illicitintercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely thatsuch person will at any age be employed or used for any such purpose, shall be punished with imprisonmentof either description for a term which may extend to ten years, and shall also be liable to fine.Explanation I.—When a female under the age of eighteen years is sold, let for hire, or otherwisedisposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing ofsuch female shall, until the contrary is proved, be presumed to have disposed of her with the intentthat she shall be used for the purpose of prostitution.Explanation II.—For the purposes of this section ‘illicit intercourse’ means sexual intercourse betweenpersons not united by marriage or by any union or tie which, though not amounting to a marriage, isrecognised by the personal law or custom of the community to which they belong or, where they belongto different communities, of both such communities, as constituting between them a quasi-maritalrelation.

xx 373. Buying minor for purposes of prostitution, etc.Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years withintent that such person shall at any age be employed or used for the purpose of prostitution or illicitintercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely thatsuch person will at any age be employed or used for any such purpose, shall be punished with imprisonmentof either description for a term which may extend to ten years, and shall also be liable to fine.Explanation I.—Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwiseobtains possession of a female under the age of eighteen years shall, until the contrary is proved, bepresumed to have obtained possession of such female with the intent that she shall be used for thepurpose of prostitution.Explanation II. – “Illicit intercourse” has the same meaning as in section 372.

The Religious Institutions (Prevention of Misuse) Act, 1988xxi 3. Prohibition of use of religious institutions for certain purposes.

No religious institution or manager thereof shall use or allow the use of any premises belonging to, orunder the control of, the institution—(b) for the harbouring of any person accused or convicted of an offence under any law for the timebeing in force; or(f) for the carrying on of any unlawful or subversive act prohibited under any law for the time being inforce or in contravention of any order made by any court; ...

7. Penalties.Where any religious institution or manager thereof contravenes the provisions of section 3, section 4,section 5, or section 6, the manager and every person connected with such contravention shall bepunishable with imprisonment for a term which may extend to five years and with fine which mayextend to ten thousand rupees.



The Indian Penal Code, 1860xxii 292. Sale, etc., of obscene books, etc.

(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting,representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals tothe prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of anyone of its items, is if taken as a whole, such as to tend to deprave and corrupt person, who are likely,having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.(2) Whoever-(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or forpurposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in hispossession any obscene book, pamphlet, paper, drawing, painting, representation or figure or anyother obscene object whatsoever, or(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing orhaving reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or inany manner put into circulation, or(c) takes part in or receives profits from any business in the course of which he knows or has reason tobelieve that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased,kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or(d) advertises or makes known by any means whatsoever that any person is engaged or is ready toengage in any act which is an offence under this section, or that any such obscene object can beprocured from or through any person, or(e) offers or attempts to do any act which is an offence under this section, shall be punished on firstconviction with imprisonment of either description for a term which may extend to two years, and withfine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction,with imprisonment of either description for a term which may extend to five years, and also with finewhich may extend to five thousand rupeesException.—This section does not extend to—(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure—(i) the publication of which is proved to be justified as being for the public good on the ground thatsuch book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest ofscience, literature, art of learning or other objects of general concern, or(ii) which is kept or used bona fide for religious purposes;(b) any representation sculptured, engraved, painted or otherwise represented on or in—(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites andRemains Act, 1958 (24 of 1958), or(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religiouspurpose.

293. Sale, etc., of obscene objects to young personWhoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twentyyears any such obscene object as is referred to in the last preceding section, or offers or attempts so todo, shall be punished on first conviction with imprisonment of either description for a term which mayextend to three years, and with fine which may extend to two thousand rupees, and, in the event of asecond or subsequent conviction, with imprisonment of either description for a term which may extendto seven years, and also with fine which may extend to five thousand rupees.

xxiii 294. Obscene acts and songsWhoever, to the annoyance of others -(a) does any obscene act in any public place, or(b) sings, recites, or utters any obscene songs, ballad, or words, in or near any public place, shall bepunished with imprisonment of either description for a term which may extend to three months, orwith fine, or with both.

The Indecent Representation of Women (Prohibition) Act, 1986xxiv 2. Definitions.

In this Act, unless the context otherwise requires,—



(c) ‘indecent representation of women’ means the depiction in any manner of the figure of a woman,her form or body or any part thereof, in such a way as to have the effect of being indecent, orderogatory to, or denigrating women, or is likely to deprave, corrupt, or injure the public morality ormorals;

xxv 3. Prohibition of advertisements containing indecent representation of womenNo person shall publish, or cause to be published, or arrange or take part in the publication or exhibitionof any advertisement that contains indecent representation of women in any form.4. Prohibition of publication or sending by post of books, pamphlets, etc., containing indecentrepresentation of women. No person shall produce or cause to be produced, sell, let to hire, distribute,circulate, or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph,representation or figure which contains indecent representation of women in any form.Provided that noting in this section shall apply to-(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation orfigure –(i) the publication of which is proved to be justified as justified as being for the public good on theground that such book, pamphlet, paper, slide , film, writing, drawing, painting, photography,representation or figure is in the interest of science, literature, art, or learning , art, or learning orother objects of general concern; or(ii) which is kept or used bona fide for religious purpose; any representation sculptured, engraved,painted or otherwise represented on or in –(i) any ancient monument within the meaning of the Ancient Monument and Archaeological Sites andRemains Act, 1958 (24 of 1958); or(ii) any temple, or on any car used or the conveyance of idols, or kept or used for any religious purpose;any film in respect of which the provisions of Part II of the Cinematograph Act, 1952 (37 of 1952), willbe applicable.

xxvi 6. PenaltyAny person who contravenes the provisions of section 3 or section 4 shall be punishable on firstconviction with imprisonment of either description for a term which may extend to two years, and withfine which may extend to two thousand rupees, and in the event of a second or subsequent convictionwith imprisonment for a term of not less than six months but which may extend to five years and alsowith a fine not less than ten thousand rupees but which may extend to one lakh rupees.

xxvii 8. Offences to be cognizable and bailable(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), anoffence punishable under this Act shall be bailable.(2) An offence punishable under this Act shall be cognizable.

The Information Technology Act, 2000xxviii 67. Publishing of information which is obscene in electronic form

Whoever publishes or transmits or causes to be published in the electronic form, any material which islascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corruptpersons who are likely, having regard to all relevant circumstances, to read, see, or hear the mattercontained or embodied in it, shall be punished on first conviction with imprisonment of either descriptionfor a term which may extend to five years, and with fine which may extend to one lakh rupees, and inthe event of a second or subsequent conviction with imprisonment of either description for a termwhich may extend to ten years and also with fine which may extend to two lakh rupees.

xxix 2. Definitions(r) “electronic form”, with reference to information, means any information generated, sent, receivedor stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche orsimilar device;



The Young Persons (Harmful Publications) Act, 1956xxx a) ‘Harmful publication’ means any book, magazine, pamphlet, leaflet, newspaper, or other like publication

which consists of stories told with the aid of pictures or without the aid of pictures or wholly inpictures, being stories portraying wholly or mainly—(i) the commission of offences; or(ii) acts of violence or cruelty; or(iii) incidents of a repulsive or horrible nature;

in such a way that the publication as a whole would tend to corrupt a young person into whose handsit might fall, whether by inciting or encouraging him to commit offences or acts of violence or cruelty,or in any other manner whatsoever.

4. Power of Government to declare harmful publications forfeited(1) The State Government may, if it is of opinion after consultation with the principal law officer of theState, whether called the Advocate-General or by any other name, that any publication is a harmfulpublication, declare, by order notified in the Official Gazette, that every copy of such publication shallbe forfeited to the Government and every such notification shall state the ground for the order.

(2) Without prejudice to the provisions contained in sub-section (1) of section 6, where there is anorder of forfeiture under sub-section (1) in respect of any publication it shall be lawful for any policeofficer to seize the same wherever found in the territories to which this Act extends.

7. Offences under this Act to be cognizableNotwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), any offencepunishable under this Act shall be cognizable.

6. Power to seize and destroy harmful publications(1) Any police officer or any other officer empowered in this behalf by the State Government may seizeany harmful publication.

(2) Any magistrate of the first class may, by warrant, authorise any police officer not below the rank ofsub-inspector to enter and search any place where any stock of harmful publications may be or may bereasonably suspected to be, and such police officer may seize any publication found in such place if inhis opinion it is a harmful publication.

(3) Any publication seized under sub-section (1) shall be produced, as soon as may be, before amagistrate of the first class, and any publication seized under sub-section (2) shall be produced, assoon as may be, before the court which issued the warrant.

(4) If in the opinion of the magistrate or court such publication is a harmful publication, the magistrateor court may cause it to be destroyed, but if, in the opinion of the magistrate or court, such publicationis not a harmful publication, the magistrate or court shall dispose of it in the manner provided insections 523, 524 and 525 of the Code of Criminal Procedure, 1898 (5 of 1898).

3. Penalty for sale, etc., of harmful publications(1) If a person—(a) sells, lets to hire, distributes, publicly exhibits, or in any manner puts into circulationany harmful publication, or (b) for purposes of sale, hire, distribution, public exhibition or circulation,prints, makes, or produces or has in his possession any harmful publication, or (c) advertises or makesknown by any means whatsoever that any harmful publication can be procured from or through anyperson, he shall be punishable with imprisonment which may extend to six months, or with fine, orwith both.(2) On a conviction under this section, the court may order the destruction of all the copies of theharmful publication in respect of which the conviction was had and which are in the custody of thecourt or remain in the possession or power of the person convicted.



Chapter 4

Human Traffickingand Labour Law



4.1 Introduction

Apart from commercial sexual exploitation, human trafficking is also carried out for purposes of labour,i.e., for compulsory/ debt/ bonded/ forced or exploitative labour. It is also common for men, women,and children to be trafficked through fraud - i.e., through promises made by an agent for work indomestic labour or other ‘lucrative’ work. After luring the victims to a place distant from home, thevictims suddenly find themselves in an exploitative situation where the work is often very differentfrom what had been described originally to them. Very often the work conditions are poor and theremuneration far below prescribed laws.

This Chapter establishes the links between the crime of trafficking and the extant specific labourlegislations, which can be used by law enforcement officials in the course of dealing with traffickingcrimes. Here, it is important to note that labour for the purposes of our discussion includes both labourand services.

Trafficking offences are punishable by sentencing those found guilty in accordance with a range ofcriminal laws. These laws will be applicable regardless of the purpose for which trafficking is undertaken.Thus, those who traffic men, women and children for forced/ exploitative labour too will be made liablefor trafficking under criminal laws. However, several labour legislations may also be effectively utilizedsince they contain several provisions with respect to protection to victims of trafficking by providingstandards of labour welfare. Thus, the remedy is two pronged - punish the traffickers and protect therights of victims.

Special provisions in labour enactments, which have a bearing on trafficking and with safety andwelfare enactments, are dealt with in this segment. Relevant provisions of the legislations have beenanalyzed and decided case laws have been mentioned where ever applicable. Annexure 1 to this Chapteralso gives a list of authorities under each labour enactment for easy reference.

The core provisions with regard to human trafficking in domestic legislation are contained in Constitutionalguarantees. The Constitution of India prohibits traffic in human beings, begar and other forms of forcedlabour1. Forced labour is a wide expression, which would be attracted whenever a person is compelled togive his labour or service, even though remuneration is paid for it. The same would be the result wherethe labourer is obliged to work at wages less than the minimum wage2.

4.1.1 Relevance of the General Provisions to Labour TraffickingThe General Provisions listed in Chapter 2 are very important since they could be applied when womenand children are trafficked for forced labour and also where there are clear violations of workers’ rights.These provisions can be used as a means of building up a strong case for forced labour, and thecorresponding relevant sections under labour legislations can then be used.

4.2 Special Provisions Relating to Trafficking for Labour: Child Labour

4.2.1 IntroductionThis section on special provisions discusses the offences of trafficking for purposes of child labour andthe provisions that exist to protect working children. The four enactments discussed are the ChildLabour (Prohibition and Regulation) Act 1986; the Children (Pledging of Labour) Act 1933; the BondedLabour System (Abolition) Act 1976 and the Juvenile Justice (Care and Protection of Children) Act2000.

1. Article 23 of the Constitution of India2. PUDR v. Union of India AIR 1982 SC 1473 Paras 6,11, 15,16; Sanjit Roy v. State of Rajasthan AIR 1983 SC 328 Paras 3,4



The Child Labour (Prohibition and Regulation) Act 1986, is an enactment that prohibits certain forms ofchild labour and therefore makes them punishable. Other areas are regulated so that working childrenreceive some protection. Since there are a significant number of children who are trafficked into forcedlabour, this enactment is important in dealing with the crime of child trafficking. The Act defines whoa child is and specifies a list of employments under which child labour is prohibited. The Act alsoprovides for penalties to offenders under the Act.

The Children (Pledging of Labour) Act, 1933 is an enactment that makes the crime of pledging childrenfor labour by guardians or parents a crime and specifies the punishment for such a crime.

The Bonded Labour System (Abolition) Act, 1976 declares any form and arrangement of bonded labourto be a crime and stipulates the punishment for any person employing bonded labour. This Act can beused with regard to all bonded labour including children and therefore is dealt with as a separate subchapter 4.2.5.

Many provisions of the Juvenile Justice Act, 2000 can be found in Chapter 2 ‘General Provisions’. Someof them can be used where relevant in cases of child labour.

4.2.2 Child Labour (Prohibition and Regulation) Act, 1986 (CLPA)The CLPA is one of the important statutes to be used in connection with trafficking for child labour. Itdefines a ‘child’ to be a person who has not completed 14 years of age3.

The Act comprehensively lays down the industries in which children shall not be employed,4 apart fromlaying down a few safety measures and other requirements which shall be met irrespective of what isstated in the other labour legislations. This Act does not apply to any employment that is undertakenwith the help of family members in one’s own residence.5 The Act prohibits the employment of childrenin certain occupations and processes mentioned in Part A and Part B of the Schedulei to the Act.

Any person, police officer, or (Labour) Inspector may file a complaint of the commission of an offenceunder this Act in a court not lower than Metropolitan Magistrate or a Magistrate of the First Class6. Thetrafficked children are to be treated as victims and not as offenders, and may be treated as ‘children inneed of care and protection’ under the Juvenile Justice Act, 2000. The Child Welfare Committee underthe JJA also plays a role in the rehabilitation of victims.

(For details, see Standard Operating Procedures on Investigating Crimes of Trafficking for Forced Labour,UNODC, 2008.)

If there is a dispute as to the age of the child, in the absence of a certificate, the Labour Inspector shallrefer the matter for decision to the prescribed medical authorityii. A certificate by such medical authorityshall be conclusive evidence as to the age of the child.

The Act provides for penalties to the employer if children are found employed in prohibited employments.It also provides for punishment if a similar offence is committed by a person who has already beenconvicted under this sectioniii.

4.2.3 The Children (Pledging of Labour) Act, 1933The Act defines an ‘agreement to pledge the labour of a child’ as an agreement by a parent or guardianwho allows the services of his/ her child to be used for employment in return for some payment orbenefit for himself/ herself. It deems and declares every such agreement to be voidiv.

3. Section 2 (ii)4. Section 35. Section 3 Proviso6. Section 16(1)



A child for the purpose of this Act is a person under the age of fifteen years.

This Act provides for penalties for 1) parent or guardian 2) any person contracting with such parent orguardian and 3) any person who employs a child with the knowledge that the child has been pledgedv.

4.2.4 The Juvenile Justice (Care and Protection of Children) Act, 2000A juvenile or child means a person who has not completed eighteenth year of age u/s. 2 (k) of the Act.Sec. 26 of the Act deals with exploitation of juvenile or child employeevi, where in it is required that noperson must procure a juvenile or child, by any means, for the purpose of any hazardous employment.The provision can be used against people who traffic children for the purpose of labour and againstthose who employ such trafficked children. It also applies if the child is kept as a bonded labourer or ifhis earnings are withheld or used by the employer for his own benefit. The offence shall be punishablewith imprisonment for a term which may extend to three years and shall also be liable to fine. Anoffence under this Section is cognizable as stated in Sec. 27.vii

4.2.5 Bonded Labour System (Abolition) Act, 1976The bonded labour system7viii refers to an exploitative labour system where persons take loans fromemployers in return for working off the loan over a period of time. A person who has to work in order topay off this loan is called a bonded labourer. This may be a child or relative of the person who has takenthe loan, or even the person himself. Wages are not paid and adjustments are supposed to be made withthe amount due.

The Act declares that the bonded labour system stands abolished as on the commencement of this Act.It prohibits anyone from making any advance or compelling any person to render any bonded labourix.It states further that any agreement or custom requiring any person to do work as a bonded labourer isvoidx and provides for punishment for anyone who compels any person to render bonded labourxi or evenadvance any bonded debt.xii Punishment in both cases of enforcing bonded labour and advancing bondeddebt is imprisonment up to three years and fine up to two thousand rupees.

The Act in Sections 13 and 14 requires that a Vigilance Committee be appointed by the State Governmentin order to perform functions that are laid down under this Act. The committee plays an active role inreporting and rehabilitating the victims of bonded labour. Every offence under this Act shall be cognizableand bailable. The bonded labourers are to be treated as victims and not offenders.

4.3 Safety and Welfare Provisions

4.3.1 IntroductionThis section deals with a set of legislations whose purpose is two-fold—(a) for labour regulation and (b)for social security measures that should be undertaken by employers for the welfare of their employees.Appropriate Authorities have been appointed in the labour legislations for implementing the Acts.Annexure 1 contains a list of Appropriate Authorities under different labour enactments. Police in thecourse of dealing with trafficking can also help these authorities maintain safety and welfare standards.An employer who employs a trafficked victim would be liable under these provisions in addition to otherprovisions dealing specifically with trafficking which may be attracted.

The main legislations covering safety and welfare are-• The Employees State Insurance Act, 1948• The Factories Act, 1948• The Mines act, 1952• The Merchant Shipping Act, 1958• The Motor Transport Workers Act, 1961

7. Defined in Section 2(g) of the Act



• The Apprentices Act, 1961• The Minimum Wages act, 1948• The Plantation Labour Act, 1951• The Sales Promotion Employees (Conditions of Service) Act, 1976• The Beedi And Cigar Workers (Conditions of Employment) Act, 1966• The Inter-State Migrant Workmen (Regulations of Employment and Conditions of Service) Act,

1979

These are discussed briefly in subsequent sub chapters.

Mentioning safety and welfare legislations while dealing with offences of trafficking is relevant astrafficked labour are seldom provided with the facilities as provided under these legislations. It may bepossible to penalize the employers of trafficked labour. These provisions may also help law enforcementagencies as these can be used to supplement provisions on trafficking as has been discussed in theIntroduction to this Chapter.

4.3.2 The Employees’ State Insurance Act, 1948This Act may be be utilized where employers do not pay their contributions or do not even treat thetrafficked labour as employees. Since the Act applies to all factories which includes all premises wherea manufacturing process is carried on, with twenty or more people if no power is used, or ten or morewhere power is used, most establishments where trafficked labour is used can be brought under itspurview.

Under this Act, the authority to take cognizance of any offence is, at the first instance, the InsuranceCommissioner or such other officer of the Corporation as may be authorized in this behalf by the CentralGovernment. occupier of the premises or the employer can be made liable under this Act, and not theemployees, as the initial payment is to be made by the employer.

Relevant sections: Section 1(4) and (5)xiii, 38xiv, 39xv, 40xvi, 41xvii, 42 and 43xviii and 85xix

4.3.3 The Factories Act, 1948The Act was passed in recognition of the fact that work in the industrial era needs to be regulated iflabour is not to be exploited. It lays down clear and widely encompassing definitions of several termsassociated with the work in the factories. The Act contains provisions for the protection of men, womenand children from hazardous processes and thus can be used to take action against offending employerswho may be employing trafficked labour. If used effectively, this law would prove useful to assist womenand children who may have been trafficked into employment in a variety of industrial employments.

The Act defines a child to be a person who has not completed 15 years of age; it also defines what ismeant by manufacturing process in detail, and a worker to be any person who is employed in themanufacturing process; it also defines a factory to be premises where ten or more workers are workingwith the aid of power, or 20 or more workers without the aid of power.

The definition of the term ‘worker’ as given in the Factories Act is very explicit, and it includes not onlythe persons employed directly but also includes persons employed through any agency including contractor,with or without the knowledge of the principal employer8.

The Act provides that a Magistrate may take cognizance only on the basis of a sanction provided by theInspector of Factories within three months of the offence. Thus, the police have limited powers foraction but can bring the matter to the notice of the Inspector of Factories.

8. Collector of Central Excise, Bombay v. Scientific Diamonds Limited 1998 Indlaw CEGAT 734



Relevant sections: Sections 2xx, 23xxi, 27xxii, 51xxiii, 54xxiv, 66xxv, 67 and 68xxvi, 71xxvii, 73xxviii, 87xxix, 92, 94and 99xxx, 105 and 106xxxi

4.3.4 The Mines Act, 1952The Mines Act is one of the early enactments that sought to regulate the work conditions of thoseworking in mines and to provide basic protection. This is another legislation that contains severalprotective provisions for the benefit and protection of men, women and children.

This enactment, like the Factories Act empowers the Chief Inspector/ Inspector of Mines to sanction anenquiry where there have been violations of the provisions by any employer. A District Magistrate cantake cognizance only if such sanction is brought to his attention by the Chief Inspector. Under the Act,a Chief Inspector may authorize an Inspector to institute prosecution under the Mines Act either bygeneral or special order in writing9.

Relevant Sections: Section 40xxxii, 43xxxiii, 45 and 46xxxiv, 67xxxv.

4.3.5 The Merchant Shipping Act, 1958The Act emerged from the need to regulate work and labour aboard ships on the high seas where thepossibilities of exploitation are much greater since it is not possible to subject merchant ships to thesame scrutiny as other fixed work sites.

The Merchant Shipping Act can be used for providing protection and security for victims of traffickingwho may be employed in such ships and from being further exploited. The Inspector under the Act maymake a complaint so that the police may prosecute any offenders.

Relevant Sections: Sections 109xxxvi, 110xxxvii, and 436xxxviii

4.3.6 The Motor Transport Workers Act, 1961The Act seeks to regulate the work of those engaged in the motor transport industry. The Act providesprotection for young children being employed in the motor transport industry but exempts factoriesand shops and commercial establishments from the purview of the Act.

An Inspector under the Act may make a complaint on the basis of which the police may take cognizanceof offences under the Act.

Relevant Sections: Sections 2xxxix, 9, 10, 11, 12xl , 13xli, 14xlii, 21xliii, 22xliv, 31xlv, 32xlvi, 33xlvii, 35xlviii, 36xlix

4.3.7 The Apprentices Act, 1961This Act can be aptly used to tackle trafficking for labour where young children are employed as apprenticeson the pretext of teaching them the trade. This is often the case with smaller manufacturing setups,workshops, and other such establishments. As many such establishments do not fall under the purviewof the Child Labour (Prohibition and Regulation) Act, this Act provides for an appropriate tool. The factof apprenticeship relies on a contract for the same, but as a person below eighteen cannot validly enterinto a contract, the mere fact of imparting training would suffice to deem it apprenticeship.

The authority in charge of reporting these offences is the Apprenticeship Advisor. The employer is theonly person who may be prosecuted under this Act. Hence, it is up to the police authorities who rescuesuch children below the age of fourteen to bring it to the notice of the Apprenticeship Advisor withinsix months of such rescue or reception of a tip off of such employment. The victim, being a child underthe age of fourteen, may be considered to be a child in need of care and protection under the JuvenileJustice Act, 2000.

9. State v. P.N. Kakkar and Others 1988 Indlaw CAL 21



Relevant Sections: Sections 31, 301i, 331ii

4.3.8 Minimum Wages Act, 1948The Minimum Wages Act was a response to a situation in which poor workers were being exploited withvery low wages, and in many cases where the workers were in debt as a result of being bonded.

The police can take cognizance only on the basis of a complaint by the appropriate Government authorizedofficer or an Inspector, within a month of the sanction.

Relevant Sections: Section 221iii, 22A1iv 22B1v, 22C1vi

4.3.9 The Plantation Labour Act, 1951The Plantation Labour Act was passed in order to regulate an employment in which the labour force islargely unskilled, migrant, and agricultural labour. The protections under this Act for men, women andchildren and the welfare provisions mentioned are important since a significant proportion of labourwithin the plantation industry is migrant labour.

The police may take cognizance of an offence under this Act only on the basis of a complaint sanctionedby the Chief Inspector under the Act.

Relevant Sections: Sections 11vii, 21viii, 4, 9, 10, 11, 12, 13, 14, 151ix, 25 and 26, 35 and 361xi, 371xii, 391xiii

4.3.10 Sales Promotion Employee (Conditions of Service) Act, 1976The Act can be used to protect those who may be trafficked and are engaged in a range of vendingactivities. The extension of other important labour legislations pertaining to industrial disputes, minimumwages, maternity benefit, payment of bonus and payment of gratuity is an important provision since itrecognizes that these social security measures would be applicable to these employees as well.

Cognizance of an offence under this Act should be made within six months of the date of the offence,and no court below that of a Metropolitan Magistrate or Magistrate of the First Class can try suchoffence.

Relevant Sections: Sections 21xiv, 41xv, 61xvi, 91xvii 111xviii.

4.3.11 Beedi And Cigar Workers (Conditions of Employment) Act, 1966This Act can be used to prevent employment of children in the beedi and cigar industries. While a childunder the age of fourteen is prohibited from being employed, women and children are prohibited frombeing employed between 7:00 PM and 6:00 AM. This Act however, does not apply to self-employedpersons who carry on manufacturing processes in private dwellings with the assistance of their ownfamilies. Hence, the owner of an industry cannot be held liable for children who were employed at homeby their own parents or other members of their family.

An offence under this Act can only be taken cognizance of if it is reported by an Inspector or ChiefInspector appointed under this Act by the state governments.

Relevant Sections: Sections 21xix, 251xx, 331xxi, 431xxii

4.3.12 Inter-State Migrant Workmen (Regulation of Employment Conditions) Act, 1979In addition to trafficking laws, the provisions of this Act can be used to fasten liability on the principalemployer and to protect the rights of the workers who may have been recruited in one State foremployment in an establishment of another State.

Relevant Sections: Sections 2(e)1xxiii, 61xxiv, 14 & 151xxv



Annexure 1

Table of Implementing Authorities under some Labour Enactments

Serial Legislation AuthorityNo.

1. Child Labour Prohibition and Regulation Act Labour Inspector, Labour Department

2. Bonded Labour System (Abolition) Act District Magistrate, Deputy Tehsildar,Revenue Department

3. Factories Act Chief Inspector/ Inspector of Factoriesand Boilers, Labour Department

4. Employees State Insurance Act Officers in each District acting under theState Labour Commissioner

5. Mines Act Assistant Labour Commissioner

6. Motor Transport Workers Act Assistant Labour Commissioner

7. Minimum Wages Act Labour Inspector

8. Plantation Labour Act Labour Officer in District

9. Beedi and Cigar Workers Act Labour Inspector, Labour Department

10. The Inter-State Migrant Workmen Act Inspector



ENDNOTESThe Child Labour (Prohibition and Regulation) Act, 1986

i 3. Prohibition of employment of children in certain occupations and processes.No child shall be employed or permitted to work in any of the occupations set forth in Part A of theSchedule or in any workshop wherein any of the processes set forth in Part B of the Schedule is carriedon:Provided that nothing in this section shall apply to any workshop wherein any process is carried on bythe occupier with the aid of his family, or to any school established by, or receiving assistance orrecognition from, Government.

ii 10 Disputes as to ageIf any question arises between an Inspector and an occupier as to the age of any child who is employedor is permitted to work by him in an establishment, the question shall, in the absence of a certificateas to the age of such child granted by the prescribed medical authority, be referred by the Inspector fordecision to the prescribed medical authority.

iii 14 Penalties.(1) Whoever employs any child or permits any child to work in contravention of the provisions ofsection 3 shall be punishable with imprisonment for a term which shall not be less than three monthsbut which may extend to one year, or with fine which shall not be less than ten thousand rupees butwhich may extend to twenty thousand rupees, or with both.(2) Whoever, having been convicted of an offence under section 3, commits a like offence afterwards,he shall be punishable with imprisonment for a term which shall not be less than six months but whichmay extend to two years.(3) Whoever—(a) fails to give notice as required by section 9; or(b) fails to maintain a register as required by section 11 or makes any false entry in any such register;or(c) fails to display a notice containing an abstract of section 3 and this section as required by section12; or(d) fails to comply with or contravenes any other provisions of this Act or the rules made there undershall be punishable with simple imprisonment which may extend to one month, or with fine which mayextend to ten thousand rupees, or with both.

15. Modified application of certain laws in relation to penalties.(1) Where any person is found guilty and convicted of contravention of any of the provisions mentionedin sub-section (2), he shall be liable to penalties as provided in sub-section (1) and (2) of section 14 ofthis Act and not under the Acts in which those provisions are contained.(2) The provisions referred to in sub-section (1) are the provisions mentioned below:(a) section 67 of the Factories Act, 1948 (63 of 1948);(b) section 40 of the Mines Act, 1952 (35 of 1982);(c) section 109 of the Merchant Shipping Act, 1958 (44 of 1958); and(d) section 21 of the Motor Transport Workers Act, 1961 (27 of 1951).

The Children (Pledging of Labour) Act, 1933iv 2. Definitions

In this Act, unless there is anything repugnant in the subject or context,—“an agreement to pledge the labour of a child” means an agreement, written or oral, expressed orimplied, whereby the parent or guardian of a child, in return for any payment or benefit received or tobe received by him, undertakes to cause or allow the services of the child to be utilised in any employment:Provided that an agreement made without detriment to a child, and not made in consideration of anybenefit other than reasonable wages to be paid for the child’s services, and terminable at not more thana week’s notice, is not an agreement within the meaning of this definition;‘child’ means a person who is under the age of fifteen years; and‘guardian’ includes any person having legal custody of or control over a child.



3. Agreements contrary to the Act to be voidAn agreement to pledge the labour of a child shall be void.

v 4. Penalty for parent or guardian making agreement to pledge the labour of a childWhoever, being the parent or guardian of a child, makes an agreement to pledge the labour of thatchild, shall be punished with fine which may extend to fifty rupees.5. Penalty for making with a parent or guardian an agreement to pledge the labour of a childWhoever makes, with the parent or guardian of a child, an agreement whereby such parent or guardianpledges the labour of the child shall be punished with fine which may extend to two hundred rupees.6. Penalty for employing a child whose labour has been pledgedWhoever, knowing or having reason to believe that an agreement has been made to pledge the labour ofa child, in furtherance of such agreement employs such child or permits such child to be employed inany premises or place under his control shall be punished with fine which may extend to two hundredrupees.

The Juvenile Justice (Care and Protection of Children) Act, 2000vi 26. Exploitation of juvenile or child employee.

Whoever ostensibly procures a juvenile or the child for the purpose of any hazardous employment,keeps him in bondage, and withholds his earnings or uses such earning for his own purposes shall bepunishable with imprisonment for a term which may extend to three years and shall also be liable tofine.

vii 27. Special offencesThe offences punishable under sections 23, 24, 25 and 26 shall be cognizable.

The Bonded Labour System (Abolition) Act, 1976viii 2(g) “bonded labour system” means the system of forced, or partly forced, labour under which a debtor

enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that-(i) in consideration of an advance obtained by him or by any of his lineal ascendants or descendants(whether or not such advance is evidenced by any document) and in consideration of the interest, ifany, due on such advance, or(ii) in pursuance of any customary or social obligation; or(iii) in pursuance of any obligation devolving on him by succession, or(iv) for any economic consideration received by him or by any of his lineal ascendants or descendants;or(v) by reason of his birth in any particular caste or community,he would-(1) render, by himself or through any member of his family, or any person dependent on him, labour orservice to the creditor, or for the benefit of the creditor, for a specified period or for an unspecifiedperiod, either without wages or for nominal wages, or(2) forfeit the freedom of employment or other means of livelihood for a specified period or for anunspecified period, or(3) forfeit the right to move freely throughout the territory of India, or(4) forfeit the right to appropriate or sell at market value any of his property or product of his labouror the labour of a member of his family or any person dependent on him. and includes the system offorced, or partly forced, labour under which a surety for a debtor enters, or has, or is presumed to have,entered into an agreement with the creditor to the effect that in the event of the failure of the debtorto repay the debt, he would render the bonded labour on behalf of the debtor;[Explanation- For the removal of doubts, it is hereby declared that any system of forced, or partly forcedlabour under which any workman being contract labour as defined in clause (b) of sub section (1) ofSection 2 of the Contract Labout (Regulation and Abolition) Act, 1970 (37 of 1970), or an Inter Statemigrant workman as defined in clause (e) of sub section (1) of Section 2 of the Inter-State MigrantWorkmen (Regulation of Employment and Conditions of Service) Act, 1979 (30 of 1979), is required torender labour or service in circumstances of the nature mentioned in sub clause (1) of this clause or issubjected to all or any of the disabilities referred to in sub clauses (2) to (4), is ‘bonded labour system’,within the meaning of this clause.]



ix 4. Abolition of bonded labour system.(1) On the commencement of this Act, the bonded labour system shall stand abolished and everybonded labourer shall, on such commencement, stand freed and discharged from any obligation torender any bonded labour.(2) After the commencement of this Act, no person shall—(a) make any advance under, or in pursuance of, the bonded labour system, or(b) compel any person to render any bonded labour or other form of forced labour.

x 5. Agreement, custom, etc., to be void.On the commencement of this Act, any custom or tradition or any contract, agreement, or other instrument(whether entered into or executed before or after the commencement of this Act) by virtue of whichany person, or any member of the family or dependent of such person, is required to do any work orrender any service as a bonded labourer, shall be void and inoperative.

xi 16. Punishment for enforcement of bonded labour.Whoever, after the commencement of this Act, compels any person to render any bonded labour shall bepunishable with imprisonment for a term which may extend to three years and also with fine whichmay extend to two thousand rupees.

xii 17 Punishment for advancement of bonded debt.Whoever advances, after the commencement of this Act, any bonded debt shall be punishable withimprisonment for a term which may extend to three years and also with fine which may extend to twothousand rupees.

The Employees’ State Insurance Act, 1948xiii 1. Short title, extent, commencement, and application

(4) It shall apply, in the first instance, to all factories (including factories belonging to the Government)other than seasonal factories.(5) The appropriate Government may, in consultation with the Corporation and where the appropriateGovernment is a State Government, with the approval of the Central Government], after giving sixmonths’ notice of its intention of so doing by notification in the official Gazette extend the provisionsof this Act or any of them to any other establishment or class of establishments industrial, commercial,agricultural, or otherwise.

xiv 38. All employees to be insuredSubject to the provisions of this Act, all employees in factories or establishments to which this Actapplies shall be insured in the manner provided by this Act.

xv 39. Contributions(1) The contribution payable under this Act in respect of an employee shall comprise contributionpayable by the employer (hereinafter referred to as the employer’s contribution) and contributionpayable by the employee (hereinafter referred to as the employee’s contribution) and shall be paid tothe Corporation.(2) The contributions shall be paid at such rates as may be prescribed by the Central Government:Provided that the rates so prescribed shall not be more than the rates which were in force immediatelybefore the commencement of the Employees’ State Insurance (Amendment) Act, 1989.(3) The wage period in relation to an employee shall be the unit in respect, of which all contributionsshall be payable under this Act.(4) The contributions payable in respect of each wage period shall ordinarily fall due on the last day ofthe wage period, and where an employee is employed for part of the wage period or is employed undertwo or more employers during the same wage period, the contributions shall fall due on such days asmay be specified in the regulations.(5) (a) If any contribution payable under this Act is not paid by the principal employer on the date onwhich such contribution has become due, he shall be liable to pay simple interest at the rate of twelvepercent per annum or at such higher rate as may be specified in the regulations till the date of itsactual payment:



Provided that the higher interest specified in the regulations shall not exceed the lending rate ofinterst charged by any scheduled bank.(b) Any interest recoverable under clause (a) may be recovered as an arrear of land revenue or undersection 45C to section 451.

xvi 40. Principal employer to pay contributions in the first instance(1) The principal employer shall pay in respect of every employee, whether directly employed by him,or by or through an immediate employer, both the employer’s contribution and the employee’scontribution.(2) Notwithstanding anything contained in any other enactment but subject to the provisions of thisAct and the regulations, if any, made there under, the principal employer shall, in the case of anemployee directly employed by him (not being an exempted employee), be entitled to recover from theemployee the employee’s contribution by deduction from his wages and not otherwise;Provided that no such deduction shall be made from any wages other than such as relate to the periodor part of the period in respect of which the contribution is payable, or in excess of the sum representingthe employee’s contribution for the period.(3) Notwithstanding any contract to the contrary, neither the principal employer nor the immediateemployer shall be entitled to deduct the employer’s contribution from any wages payable to an employeeor otherwise to recover it from him.(4) Any sum deducted by the principal employer from wages under this Act shall be deemed to havebeen entrusted to him by the employee for the purpose of paying the contribution in respect of whichit was deducted.(5) The principal employer shall bear the expenses of remitting the contributions to the Corporation.

xvii 41. Recovery of contribution from immediate employer.-(1) A principal employer, who has paid contribution in respect of an employee employed by or throughan immediate employer, shall be entitled to recover the amount of the contribution so paid (that is tosay the employer’s contribution as well as employee’s contribution, if any); from the immediate employer,either by deduction from any amount payable to him by the principal employer under any contract, oras a debt payable by the immediate employer.(1-A) The immediate employer shall maintain a register of employees employed by or through him asprovided in the regulations and submit the same to the principal employer before the settlement of anyamount payable under sub section(1).(2) In the case referred to in sub section (1), the immediate employer shall be entitled to recover theemployee’s contribution from the employee employed by or through him by deduction from wages andnot otherwise, subject to the conditions specified in the proviso to sub section (2) of Section 40.

xviii 42. General provisions as to payment of contributions.(1) No employee’s contribution shall be payable by or on behalf of an employee whose average dailywages during a wage period are below such wages as may be prescribed by the Central Government.Explanation.- The average daily wages of an employee shall be calculated in such manner as may beprescribed by the Central Government.(2) Contribution (both the employer’s contribution and the employee’s contribution) shall be payableby the principal employer for each wage period in respect of the whole or part of which wages arepayable to the employee and not otherwise.

43. Method of payment of contribution.Subject to the provisions of this Act, the Corporation may make regulations for any matter relating orincidental to the payment and collection of contributions payable under this Act and without prejudiceto the generality of the foregoing power such regulations may provide for-(a) the manner and time of payment of contributions;(b) the payment of contributions by means of adhesive or other stamps affixed to or impressed uponbooks, cards or otherwise and regulating the manner, times and conditions in, at and under which, suchstamps are to be affixed, or impressed;(bb) the date by which evidence of contributions having been paid is to be received by the Corporation



(c) the entry in or upon books or cards of particulars of contributions paid and benefits distributed inthe case of the insured persons to whom such books or cards relate; and(d) the issue, sale, custody, production, inspection and delivery of books or cards and the replacementof books or cards which have been lost; destroyed or defaced.

xix 85. Punishment for failure to pay contributions; etc.If any person-(a) fails to pay any contribution which under this Act he is liable to pay, or(b) deducts or attempts to deduct from the wages of an employee the whole or any part of the employer’scontribution; or(c) in contravention of Section 72 reduces the wages or any privileges or benefits admissible to anemployee, or(d) in contravention of Section 73 or any regulation dismisses, discharges, reduces or otherwise punishesan employee; or(e) fails or refuses to submit any return required by the regulations, or makes a false return; or(f) obstructs any Inspector or other official of the Corporation in the discharge of his duties; or(g) is guilty of any contravention of or non compliance with any of the requirements of this Act or therules or the regulations in respect of which no special penalty is provided.He shall be punishable-(i) where he commits an offence under clause (a), with imprisonment for a terms which may extend tothree years but-(a) which shall not be less than one year, in case of failure to pay the employee’s contribution whichhas been deducted by him from the employee’s wages and shall also be liable to fine of ten thousandrupees;(b) which shall not be less than six months; in any other case and shall also be liable to fine of fivethousand rupeesProvided that the Court may, for any adequate and special reasons to be recorded in the judgment,impose a sentence of imprisonment for a lesser term;(ii) where he commits an offence under any of the clauses (b) to (g) (both inclusive), with imprisonmentfor a terms which may extend to one year or with fine which may extend to four thousand rupees, orwith both.

The Factories Act, 1948xx Section 2

The Act defines child to be a person who has not completed 15 years of age; it also defines what ismeant by manufacturing process in detail, and a worker to be any person who is employed in themanufacturing process; it also defines a factory to be premises where ten or more workers are workingwith the aid of power, or 20 or more workers without the aid of power.

xxi 23. Employment of young persons on dangerous machines(1) No young person shall be required or allowed to work at any machine to which this section applies,unless he has been fully instructed as to the dangers arising in connection with the machine and theprecautions to be observed and—(a) has received sufficient training in work at the machine, or(b) is under adequate supervision by a person who has thorough knowledge and experience of themachine.(2) Sub-section (1) shall apply to such machines as may be prescribed by the State Government, beingmachines which in its opinion are of such a dangerous character that young persons ought not to workat them unless the foregoing requirements are complied with.

xxii 27. Prohibition of employment of women and children near cotton-openersNo woman or child shall be employed in any part of a factory for pressing cotton in which a cotton-opener is at work:Provided that, if the feed-end of a cotton-opener is in a room separated from the delivery end by apartition extending to the roof or to such height as the Inspector may in any particular case specify in



writing, women and children may be employed on the side of the partition where the feed-end issituated.

xxiii 51. Weekly hoursNo adult worker shall be required or allowed to work in a factory for more than forty-eight hours in anyweek.

xxiv 54. Daily hoursSubject to the provisions of section 51, no adult worker shall be required or allowed to work in a factoryfor more than nine hours in any day:Provided that, subject to the previous approval of the Chief Inspector, the daily maximum specified inthis section may be exceeded in order to facilitate the change of shifts.

xxv 66. Further restrictions on employment of women(1) The provisions of this Chapter shall, in their application to women in factories, be supplemented bythe following further restrictions, namely:—(a) no exemption from the provisions of section 54 may be granted in respect of any woman;(b) no woman shall be required or allowed to work in any factory except between the hours of 6 am and7 pm:Provided that the State Government may, by notification in the official Gazette, in respect of anyfactory or group or class or description of factories, vary the limits laid down in clause (b), but so thatno such variation shall authorize the employment of any woman between the hours of 10 P.M. and 5A.M.;(c) there shall be no change of shifts except after a weekly holiday or any other holiday(2) The State Government may make rules providing for the exemption from the restrictions set out insub-section (1), to such extent and subject to such conditions as it may prescribe, of women working infish-curing or fish-canning factories, where the employment of women beyond the hours specified inthe said restrictions is necessary to prevent damage to, or deterioration in, any raw material.(3) The rules made under sub-section (2) shall remain in force for not more than three years at a time.

xxvi 67. Prohibition of employment of young children.No child who has not completed his fourteenth year shall be required or allowed to work in any factory.

68. Non adult workers to carry tokens.A child who has completed his fourteenth year or an adolescent shall not be required or allowed to workin any factory unless-(a) a certificate of fitness granted with reference to him under Section 69 is in the custody of themanager of the factory, and(b) such child or adolescent carries while he is at work a token giving a reference to such certificate.

xxvii 71. Working hours for children(1) No child shall be employed or permitted to work, in any factory—(a) for more than four and a half hours in any day;(b) during the night.Explanation—For the purpose of this sub-section, ‘night’ shall mean a period of at least twelve consecutivehours, which shall include the interval between 10 pm and 6 am.(2) The period of work of all children employed in a factory shall be limited to two shifts which shallnot overlap or spread over more than five hours each; and each child shall be employed in only one ofthe relays which shall not, except with the previous permission in writing of the Chief Inspector, bechanged more frequently than once in a period of thirty days.(3) The provisions of Section 52 shall apply also to child workers, and no exemption from the provisionsof that section may be granted in respect of any child.(4) No child shall be required or allowed to work in any factory on any day on which he has alreadybeen working in another factory.(5) No female child shall be required or allowed to work in any factory except between 8 a.m and 7 p.m.



xxviii 73. Register of child workers(1) The manager of every factory in which children are employed shall maintain a register of childworkers, to be available to the Inspector at all times during working hours or when any work is beingcarried on in a factory, showing—(a) the name of each child worker in the factory,(b) the nature of his work,(c) the group, if any, in which he is included,(d) where his group works on shifts, the relay to which he is allotted, and(e) the number of his certificate of fitness granted under section 69.(1A) No child worker shall be required or allowed to work in any factory unless his name and otherparticulars have been entered in the register of child workers.(2) The State Government may prescribe the form of the register of child workers, the manner in whichit shall be maintained, and the period for which it shall be preserved.

xxix 87. Dangerous operationsWhere the State Government is of opinion that any manufacturing process or operation carried on in afactory exposes any persons employed in it to a serious risk of bodily injury, poisoning or disease, itmay make rules applicable to any factory or class or description of factories in which the manufacturingprocess or operation is carried on-(a) specifying the manufacturing process or operation and declaring it to be dangerous;(b) prohibiting or restricting the employment of women, adolescents or children in the manufacturingprocess or operation;(c) providing for the periodical medical examination of persons employed, or seeking to be employed,in the manufacturing process or operation, and prohibiting the employment of persons not certified asfit for such employment and requiring the payment by the occupier of the factory of fees for suchmedical examination;(d) providing for the protection of all persons employed in the manufacturing process or operation orin the vicinity of the places where it is carried on;(e) prohibiting, restricting or controlling the use of any specified materials or processes in connectionwith the manufacturing process or operation;(f) requiring the provision of additional welfare amenities and sanitary facilities and the supply ofprotective equipment and clothing, and laying down the standards thereof, having regard to the dangerousnature of the manufacturing process or operation.

xxx 92. General penalty for offencesSave as is otherwise expressly provided in this Act and subject to the provisions of section 93, if in, orin respect of, a factory there is any contravention of any of the provisions of the Act or of any rulesmade there under or of any order in writing given there under, the occupier and manager of the factoryshall each be guilty of an offence and punishable with imprisonment for a term which may extend totwo years or with fine which may extend to one lakh rupees or with both, and if the contravention iscontinued after conviction, with a further fine which may extend to one thousand rupees for each dayon which the contravention is so continued.Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunderor under Section 87 has resulted in an accident causing death or serious bodily injury, the fine shall notbe less than twenty five thousand rupees in the case of an accident causing death, and five thousandrupees in the case of an accident causing serious bodily injury.Explanation- In this section and in Section 94 “serious bodily injury” means an injury which involves,or in all probability will involve, the permanent loss of the use of, or permanent injury to, any limb orthe permanent loss of, or injury to, sight or hearing, or the fracture of any bone, but shall not include,the fracture of bone or joint ( not being fracture of more than one bone or joint) of any phalanges ofthe hand or foot.

94. Enhanced penalty after previous convictionIf any person who has been convicted of any offence punishable under section 92 is again guilty of anoffence involving a contravention of the same provision, he shall be punishable on a subsequent



conviction with imprisonment for a term which may extend to three years or with fine which mayextend to two lakh rupees or with both: Provided that the court may, for any adequate and specialreasons to be mentioned in the judgment, impose a fine of less than ten thousand rupees:Provided further that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under Section 87 has resulted in an accident causing death or serious bodily injury, the fineshall not be less than thirty five thousand rupees in the case of an accident causing death and tenthousand rupees in the case of an accident causing serious bodily injury.(2) For the purposes of sub section (1), no cognizance shall be taken of any conviction made more thantwo years before the commission of the offence for which the person is subsequently being convicted.

99. Penalty for permitting double employment of childIf a child works in a factory on any day on which he has already been working in another factory, theparent or guardian of the child, or the person having custody of or control over him or obtaining anydirect benefit from his wages, shall be punishable with fine which may extend to one thousand rupees,unless it appears to the Court that the child so worked without the consent or connivance of suchparent, guardian, or person.

xxxi 105. Cognizance of offences(1) No Court shall take cognizance of any offence under this Act except on complaint by, or with theprevious sanction in writing of, an Inspector.(2) No Court below that of a Presidency Magistrate or of a Magistrate of the first class shall try anyoffence punishable under this Act.106. Limitation of prosecutionsNo court shall take cognizance of any offence punishable under this Act unless complaint thereof ismade within three months of the date on which the alleged commission of the offence came to theknowledge of an Inspector:Provided that where the offence consists of disobeying a written order made by an Inspector, complaintthereof may be made within six months of the date on which the offence is alleged to have beencommitted.

The Mines Act, 1952xxxii 40. Employment of persons below eighteen years of age

(1) After the commencement of the Mines (Amendment) Act, 1983, no person below eighteen years ofage shall be allowed to work in any mine or part thereof.(2) Notwithstanding anything contained in sub-section (1), apprentices and other trainees, not belowsixteen years of age, may be allowed to work, under proper supervision, in a mine or part thereof by themanager:Provided that in the case of trainees, other than apprentices, prior approval of the Chief Inspector or anInspector shall be obtained before they are allowed to work.Explanation.- In this section and in Section 43, “apprentice” means an apprentice as defined in clause(a) of the Apprentices Act, 1961.

xxxiii 43. Power to require medical examination(1) Where an Inspector is of opinion that any person employed in a mine other wise than as anapprentice or other trainee is not an adult or that any person employed in a mine as an apprentice orother trainee is either below sixteen years of age or is no longer fit to work, the Inspector may serve onthe manager of the mine a notice requiring that such person shall be examined by a certifying surgeonand such person shall not, if the Inspector so directs, be employed or permitted to work in any mineuntil he has been so examined and has been certified that he is an adult or, if such person is anapprentice or trainee, that he is not below sixteen years of age and is fit to work.(2) Every certificate granted by a certifying surgeon on a reference under sub-section (1), shall, for thepurpose of this Act, be conclusive evidence of the matters referred therein.

xxxiv 45. Prohibition of the presence of persons below eighteen years of ageSubject to the provisions of sub-section (2) of Section 40 after such date as the Central Governmentmay, by notification in the Official Gazette, appoint in this behalf, no person below eighteen years of



age shall be allowed to be present in any part of a mine above ground where any operation connectedwith or incidental to any mining operation is being carried on.

46. Employment of women(1) No woman shall, notwithstanding anything contained in any other law, be employed-(a) in any part of a mine which is below ground(b) in any mine above ground except between the hours of 6 am and 7 pm(2) Every woman employed in a mine above ground shall be allowed an interval of not less than elevenhours between the termination of employment on any one day and the commencement of the nextperiod of employment.(3) Notwithstanding anything contained in sub-section (1), the Central Government may, by notificationin the Official Gazette, vary the hours of employment above ground of women in respect of any mine orclass or description of min, so however that no employment of any woman between the hours of 10 pmand 5 am is permitted thereby.

xxxv 67. Contravention of provisions regarding employment of labour.Whosoever, save as permitted by Section 38, contravenes any provision of this Act or of any regulation,rules or bye-law or of any order made there under prohibiting, restricting or regulating the employmentor presence of persons in or about a mine shall be punishable with imprisonment for a term which mayextend to three months, or with fine which may extend to one thousand rupees, or with both.

The Merchant Shipping Act, 1958xxxvi 109. Employment of children.

No person under fourteen years of age shall be engaged or carried to sea to work in any capacity in anyship, except— (a) in a school ship, or training ship, in accordance with the prescribed conditions ; or(b) in a ship in which all persons employed are members of one family ; or (c) in a home-trade ship ofless than two hundred tons gross ; or (d) where such person is to be employed on nominal wages andwill be in the charge of his father or other adult near male relative.

xxxvii110. Engagement of young persons as trimmers or stokers. (1) Save as otherwise provided in sub-sections (2) and (3), no young person shall be engaged or carried to sea to work as a trimmer or stokerin any ship.(2) Sub-section (1) shall not apply— (a) to any work of trimming or stoking done by a young person ina school ship or training ship in accordance with the prescribed conditions ; or (b) to any work oftrimming or stoking done by a young person in a ship which is mainly propelled otherwise than bysteam ; or (c) to the engagement or carrying to sea of a person over sixteen years of age to work as atrimmer or stoker on a coasting ship, provided he is employed in accordance with the prescribedconditions.(3) Where in any port a trimmer or stoker is required for any ship other than a coasting ship, and noperson over eighteen years of age is available, two young persons over sixteen years of age may beengaged and carried to sea to do the work which would otherwise have been done by one person overeighteen years of age.(4) There shall be included in every agreement with the crew in ships to which this section applies ashort summary of the provisions of this section.

xxxviii 436. In cases where an employer takes a child to sea in violation of the above, such employer will beliable to a fine of Rs.50/-; in cases where a parent or guardian misrepresents or hides the actual age ofthe child, such parent would be liable to pay a fine of Rs.50/-, and where an employer fails to producea certificate of fitness with regard to any child and where he has failed to maintain and produce aregister of young persons, on inspection, shall be liable to pay a fine of up to Rs.50/- and Rs.200/-respectively.

The Motor Transport Workers Act, 1961xxxix 2. Definitions

(a) ‘adolescent’ means a person who has completed his fourteenth year but has not completed hiseighteenth year



(b) ‘adult’ means a person who has completed his eighteenth year(c) ‘child’ means a person who has not completed his fourteenth year.

xl 9. Rest rooms(1) In every place wherein motor transport workers employed in a motor transport undertaking arerequired to halt at night, there shall be provided and maintained by the employer for the use of thosemotor transport workers such number of rest rooms or such other suitable alternative accommodation,as may be prescribed.(2) The rest rooms or the alternative accommodation to be provided under sub-section (1) shall besufficiently lighted and ventilated and shall be maintained in a clean and comfortable condition.(3) The State Government may prescribe the standards in respect of construction, accommodation,furniture and other equipment of rest rooms or the alternative accommodation to be provided underthis section.

10. Uniforms.(1) The State Government may, by notification in the Official Gazette, make rules requiring an employerof a motor transport undertaking to provide for the drivers, conductors and line checking staff employedin that undertaking such number and type of uniforms, raincoats or other like amenities for theirprotection from rain or cold as may be specified in the rules.(2) There shall be paid to the drivers, conductors and line checking staff by the employer an allowancefor washing of uniforms provided under sub section (1) at such rates as may be prescribed:Provided that no such allowance shall be payable by an employer who has made at his own costadequate arrangements for the washing of uniforms.

11. Medical facilities.There shall be provided and maintained by the employer so as to be readily available such medicalfacilities for the motor transport workers at such operating centres and halting stations as may beprescribed by the State Government.

12. First Aid facilities.(1) There shall be provided and maintained by the employer so as to be readily accessible during allworking hours a first aid box equipped with the prescribed contents in every transport vehicle.(2) Nothing except the prescribed contents shall be kept in a first aid box.(3) The first aid box shall be kept in the charge of the driver or the conductor of the transport vehiclewho shall be provided facilities for training in the use thereof.

xli 13. Hours of work for adult transport workers.No adult motor transport worker shall be required or allowed to work for more than eight hours in anyday and forty eight hours in any week:Provided that where any such motor transport worker is engaged in the running of any motor transportservice on such long distance routes, or on such festive and other occasions as may be notified in theprescribed manner by the prescribed authority, the employer may, with the approval of such authority,require or allow such motor transport worker to work for more than eight hours in any day or fortyeight hours in any week but in no case for more than ten hours in a day and fifty four hours in a week,as the case may be:Provided further that in the case of a breakdown or dislocation of a motor transport service or interruptionof traffic or act of God, the employer may, subject to such conditions and limitations as may beprescribed, require or allow any such motor transport worker to work for more than eight hours in anyday or more than forty eight hours in any week.

xlii 14. Hours of work for adolescents employed as motor transport workers.No adolescent shall be employed or required to work as a motor transport worker in any motor transportundertaking-(a) for more than six hours a day including rest interval of half an hour(b) between the hours of 10 p.m and 6 a.m.



xliii 21. Prohibition of employment of children.No child shall be required or allowed to work in any capacity in any motor transport undertaking.

xliv 22. Adolescents employed motor transport workers to carry tokens.No adolescent shall be required or allowed to work as a motor transport worker in any motor transportundertaking unless-(a) a certificate of fitness granted with reference to him under Section 23 is in the custody of theemployer; and(b) such adolescent carries with him while he is at work a token giving a reference to such certificate.

xlv 31. Contravention of provisions regarding employment of motor transport workers.Whoever, except as otherwise permitted by or under this Act, contravenes any provision of this Act orof any rules made there under, prohibiting, restricting, or regulating the employment of persons in amotor transport undertaking, shall be punishable with imprisonment for a term which may extend tothree months, or with fine which may extend to five hundred rupees, or with both, and in the case ofa continuing contravention with an additional fine which may extend to seventy five rupees for everyday during which such contravention continues after conviction for such contravention.

xlvi 32. Other offences.Whoever willfully disobeys any direction lawfully given by any person or authority empowered underthis Act to give such direction or contravenes any of the provisions of this Act or of any rules madethere under for which no other penalty is elsewhere provided by or under this act shall be punishablewith imprisonment for a term which may extend to three months, or with fine which may extend to fivehundred rupees, or with both..

xlvii 33. Enhanced penalty after previous conviction.If any person who has been convicted of any offence punishable under this Act is again guilty of anoffence involving a contravention of the same provision, he shall be punishable on a subsequentconviction with imprisonment which may extend to six months, or with fine which may extend to onethousand rupees, or with both:Provided that for the purposes of this section no cognizance shall be taken of any conviction mademore than two years before the commission of the offence which is being punished.

xlviii 35. Cognizance of offences.No court shall take cognizance of any offence under this Act except on complaint made by, or with theprevious sanction in writing of the inspector and no court inferior to that of a Presidency magistrate ora Magistrate of the first class shall try any offence punishable under this Act.

xlvix 36. Limitation of prosecutions.No court shall take cognizance of an offence punishable under this Act unless the complaint thereof ismade within three months from the date on which the alleged commission of the offence came to theknowledge of an inspector:Provided that where the offence consists of disobeying a written order made by an inspector, complaintthereof may be made within six months of the date on which the offence is alleged to have beencommitted.

The Apprentices Act, 19611 3. Qualification for being engaged as an apprentice .

A person shall not be qualified for being engaged as an apprentice to undergo apprenticeship trainingin any designated trade, unless he –(a) is not less than fourteen years of age; and(b) (b) satisfies such standards or education and physical fitness as may be prescribed:Provided that different standards may be prescribed in relation to apprenticeship training in differentdesignated trades and for different categories of apprentices.



1i 30. Offences and penalties.(1) If any employer— (a) engages as an apprentice a person who is not qualified for being so engaged,or (b) fails to carry out the terms and conditions of a contract of apprenticeship, or (c) contravenes theprovisions of this Act relating to the number of apprentices which he is required to engage under thoseprovisions, he shall be punishable with imprisonment for a term which may extend to six months orwith fine or with both.(2) If any employer or any other person— (a) required to furnish any information or return— (i)refuses or neglects to furnish such information or return, or (ii) furnishes or causes to be furnished anyinformation or return which is false and which he either knows or believes to be false or does notbelieve to be true, or (iii) refuses to answer, or gives a false answer to any question necessary forobtaining any information required to be furnished by him, or (b) refuses or wilfully neglects to affordthe Central or the State Apprenticeship Adviser or such other person, not below the rank of an AssistantApprenticeship Adviser, as may be authorised by the Central or the State Apprenticeship Adviser inwriting in this behalf any reasonable facility for making any entry, inspection, examination or inquiryauthorised by or under this Act, or (c) requires an apprentice to work overtime without the approval ofthe Apprenticeship Adviser, or (d) employs an apprentice on any work which is not connected with histraining, or (e) makes payment to an apprentice on the basis of piecework, or (f) requires an apprenticeto take part in any output bonus or incentive scheme, he shall be punishable with imprisonment for aterm which may extend to six months or with fine or with both.

1ii 33. Cognizance of OffenceNo court shall take cognizance of any offence under this Act or the rules made thereunder except on acomplaint thereof in writing made by the Apprenticeship Adviser within six months from the date onwhich the offence is alleged to have been committed.

The Minimum Wages Act, 19481iii 22. Penalties for certain offences.

Any employer who— (a) pays to any employee less than the minimum rates of wages fixed for thatemployee’s class of work, or less than the amount due to him under the provisions of this Act, or (b)contravenes any rule or order made under section 13, shall be punishable with imprisonment for a termwhich may extend to six months, or with fine which may extend to five hundred rupees, or with both:Provided that in imposing any fine for an offence under this section, the Court shall take into considerationthe amount of any compensation already awarded against the accused in any proceedings taken undersection 20.

1iv 22 A. - General provision for punishment of other offences. - Any employer who contravenes anyprovision of this Act or of any rule or order made thereunder shall, if no other penalty is provided forsuch contravention by this Act, be punishable with fine which may extend to five hundred rupees.

1v 22 B. Cognizance of offences .(1) No Court shall take cognizance of a complaint against any person for an offence— (a) under clause(a) of section 22 unless an application in respect of the facts constituting such offence has beenpresented under section 20 and has been granted wholly or in part, and the appropriate Government oran officer authorised by it in this behalf has sanctioned the making of the complaint; (b) under clause(b) of section 22 or under section 22A except on a complaint made by, or with the sanction of, anInspector.(2) No Court shall take cognizance of an offence— (a) under clause (a) or clause (b) of section 22,unless complaint thereof is made within one month of the grant of sanction under this section; (b)under section 22A, unless complaint thereof is made within six months of the date on which theoffence is alleged to have been committed. 22C. Offences by companies.

1vi. 22 C. Offences by companies .(1) If the person committing any offence under this Act is a company, every person who at the time theoffence was committed, was incharge of, and was responsible to, the company for the conduct of thebusiness of the company as well as the company shall be deemed to be guilty of the offence and shallbe liable to be proceeded against and punished accordingly: Provided that nothing contained in this



sub-section shall render any such person liable to any punishment provided in this Act if he proves thatthe offence was committed without his knowledge or that he exercised all due diligence to prevent thecommission of such offence.(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has beencommitted by a company and it is proved that the offence has been committed with the consent orconnivance of, or is attributable to any neglect on the part of, any director, manager, secretary or otherofficer of the company, such director, manager, secretary or other officer of the company shall also bedeemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.Explanation.—For the purposes of this section,— (a) “company” means any body corporate and includesa firm or other association of individuals, and (b) “director” in relation to a firm means a partner in thefirm.

The Plantation Labour Act, 19511vii 1. - Short title, extent, commencement and application-

(3)It applies to the following plantations, that it to say,-(a)To any land used or intended to be used for growing tea, coffee, rubber [, cinchona or cardamomwhich admeasures 5 hectares or more and in which fifteen or more persons are employed or wereemployed on any day of the preceding twelve months-,(b)To any land used or intended to be used for growing any other plant, which admeasures 5 hectaresor more and in which fifteen or more persons are employed or were employed on any day of thepreceding twelve months, if after obtaining the approval of the Central Government, the State Governmentby notification in the Official Gazette, so directs.

1viii 2. In this Act, unless the context otherwise requires-(a) ”Adolescent” means a person who has completed his fourteenth year but has not completed hiseighteenth year,(b) ”Adult” means a person who has completed his eighteenth year,(c) ”Child” means a person who has not completed his fourteenth year.

1ix 4. Chief inspector and inspectors(1) The State Government may, by notification in the Official Gazette, appoint for the State dulyqualified person to be chief inspector of plantations, and so many duly qualified persons to be inspectorsof plantations subordinate to the chief inspector as it thinks fit.I-A. The State Government may also, by notification in the Official Gazette, appoint such officers of theState Government or of any local authority under its control as it thinks fit, to be additional inspectorsof plantations for all or any of the purposes of this Act.(2)Subject to such rules as may be made in this behalf by the State Government, the chief inspectormay declare that local area or areas within which or the plantations with respect to which, inspectorsshall exercise their powers under this Act, and may himself exercise the powers of an inspector withinsuch limits as may be assigned to him by the State Government.(3) The Chief Inspector and if inspectors shall be deemed to be public servants within the meaning ofthe Indian Penal Code (45 of 1860).

8. Drinking water.In every plantation effective arrangements shall be made by the employer to provide and maintain atconvenient places in the plantation a sufficient supply of wholesome drinking water for all workers.

9. Conservancy.(1) There shall be provided separately for males and females in every plantation a sufficient number oflatrines and urinals of prescribed types so situated as to be convenient and accessible to workersemployed therein.(2) All latrines and urinals provided under sub-section (1) shall be maintained in a clean and sanitarycondition.

10. Medical Facilities(1) In every plantation there shall be provided and maintained so as to be readily available such medicalfacilities for the workers [and their families]1 as may be prescribed by the State Government.



(2) If in any plantation medical facilities are not provided and maintained as required by sub-section(1) the chief inspector may cause to be provided and maintained therein such medical facilities, andrecover the cost thereof from the defaulting employer.(3) For the purposes of such recovery the chief inspector may certify the costs to be recovered to thecollector, who may recover the amount as an arrear of land revenue.

11. Canteens.(1) The State Government may make rules requiring that in every plantation wherein one hundred andfifty workers are ordinarily employed, one or more canteens shall be provided and maintained by theemployer for the use of the workers.(2)Without prejudice to the generality of the foregoing power such rules may provide for-(a)The date by which the canteen shall be provided;(b)The number of canteens that shall be provided and the standards in respect of construction,accommodation, furniture and other equipment of the canteen;(c) The foodstuffs which may be served therein and the charges which may be made therefor;(d) The constitution of a managing committee for the canteen and the representation of the workers inthe management of the canteen;(e) The delegation to the chief inspector, subject to such conditions as may be prescribed, of the powerto make rules under clause (c).

12. Crèches.(1) In every plantation wherein fifty or more women workers (including women workers employed byany contractor) are employed or were employed on any day of the preceding twelve months, or wherethe number of children of women workers (including women workers employed by any contractor) istwenty or more, there shall be provided and maintained by the employer suitable rooms for the use ofchildren of such women workers. Explanation. - For the purposes of this sub-section and sub-section(1-A), “children” means persons who are below the age of six years.](I-A) Notwithstanding anything contained in sub-section (1), if, in respect of any plantation whereinless than fifty women workers (including women workers employed by any contractor) are employed orwere employed on any day of the preceding twelve months, or where the number of children of suchwomen workers is less than twenty, the State Government, having regard to the number of children ofsuch women workers deems it necessary that suitable rooms for the use of such children should beprovided and maintained by the employer, it may, by order, direct the employer to provide and maintainsuch rooms and thereupon the employer shall be bound to comply with such direction.(2) The rooms referred to in sub-section (1) or sub-section 1-A shall-(a) Provide adequate accommodation;(b) Be adequately lighted and ventilated;(c) Be maintained in a clean and sanitary condition; and(d) Be under the charge of a woman trained in the care of children and infants.(3)The State Government may make rules prescribing the location and the standards of the roomsreferred to in sub-section(1) or sub-section (1-A) in respect of their construction and accommodation and the equipment andamenities to be provided therein.

13. Recreational facilities.The State Government may make rules requiring every employer to make provision in his plantation forsuch recreational facilities for the workers and children employed therein as may be prescribed.

14. Educational facilities.Where the children between the ages of six and twelve of workers employed in any plantation exceedtwentyfive in number, the State Government may make rules, requiring every employer to provideeducational facilities for the children in such manner and of such standard as may be prescribed.

15. Housing facilities.It shall be the duty of every employer to provide and maintain necessary housing accommodation-(a)For every worker (including his family) residing in the plantation;



(b)For every worker (including his family) residing outside the plantation, who has put in six monthsof continuous service in such plantation and who has expressed a desire in writing to reside in theplantation:Provided that the requirement of continuous service of six months under this clause shall not apply toa worker who is a member of the family, of a deceased worker who, immediately before his death, wasresiding in the plantation.

1x 25. Night work for women and children.Except with the permission of the State Government, no woman or child worker shall, be employed inany plantation otherwise than between the hours of 6 a.m. and 7 p.m.Provided that nothing in this section shall be deemed to apply to midwives and nurses employed assuch in any plantation.

26. Non-adult workers to carry tokens.No child and no adolescent shall be required or allowed to work in any plantation unless-(a) A certificate of fitness granted with the reference to him under Section 27 is in the custody of theemployer; and(b) Such child or adolescent carries with him while he is at work a token giving a reference to suchcertificate.

1xi. 35. Contravention of provisions regarding employment of labour.Whoever, except as otherwise permitted any or under this Act, contravenes any provision of this Act orof any rules made thereunder, prohibiting, restrict in or regulating the employment of persons in aplantation, shall be punishable with imprisonment for a term which may extend to three months, orwith fine which may extend to five hundred rupees, or with both.

36. Other offences.Whoever contravenes any of the provisions of this Act or of any rules made thereunder for which noother penalty is elsewhere provided by or under this Act shall be punishable with imprisonment for aterm which may extend to three months, or with fine which may extend to five hundred rupees, or withboth.

1xii 37. Enhanced penalty after previous conviction.If any person who has, been convicted of any offence punishable under this Act is again guilty of anoffence involved a Contravention of the same provision, he shall be punishable on a subsequent convictionwith imprisonment which may extend to six months, or with fine which may extend to one thousandrupees, or with both:Provided that for the purposes of this section no cognizance taken of any conviction made more thantwo years before the commission of the offence which is being punished.

1xiii 39. No court shall take any cognizance of any offence under this Act unless a complaint is made or withsanction by Chief Inspector. Only a Presidency Magistrate or Magistrate of the IInd Class shall try anyoffence punishable. No court below these can try an offence under the Act.

The Sales Promotion Employee (Conditions of Service) Act, 19761xiv Section 2 (d) “sales promotion employees” means any person by whatever name called (including an

apprentice) employed or engaged in any establishment for hire or reward to do include any such person- (i) who, being employed or engaged in a supervisory capacity, draws wages exceeding sixteen hundredrupees per mensem; or(ii) who is employed or engaged mainly in a managerial or administrative capacity;Explanation: For the purposes of this clause, the wager per menses of a person shall be deemed to be theamount equal to thirty times his total wages (whether or not including, or comprising only of, commission)in respect of the continuous period of his service falling within the period of twelve months immediatelypreceding the date with reference to which the calculation is to be made, divided by the number of dayscomprising that period of service.



1xv 4. Leave . –(1) In addition to such holidays, casual leave or other kinds of leave as may be prescribed, every salespromotion employee shall be granted, if so requested for - (a) earned leave on full wages for not lessthan one-eleventh of the period spent on duty;(b) leave on medical certificate on one-half of the wages for not less than one-eighteenth of the periodof service.(2) The maximum limit up to which a sales promotion employee may accumulate earned leave shall besuch as may be prescribed.(3) The limit up to the earned leave may be availed of at a time by a sales promotion employee and thereasons for which such limit may be exceeded shall be such as may be prescribed.(4) A sales promotion employee shall, - (a) when he voluntarily relinquishes his post or retires fromservice, or(b) when his service are terminated for any reason whatsoever (not being termination as punishment),be entitled to cash compensation, subject to such conditions and restrictions as may be prescribed(including conditions byway of specifying the maximum period for which such cash compensation shallbe payable), in respect of the earned leave earned by him and not availed of.(5) Where a sales promoting employee dies while in service, his heirs shall be entitled to cash compensationfor the earned leave earned by him and not availed of.(6) The cash compensation which will be payable to a sales promotion employee or, as the case may be,his heirs in respect of any period of earned leave for which he or his heirs, as the case may be, is or areentitled to cash compensation under subsection(4) or sub-section(5), as the case may be, shall be an amount equal to the wages due to such salespromotion employee for such period.

1xvi 6. Application of certain acts to sales promotion employees .The provisions of the Workmen’s Compensation Act, 1923(8 of 1923), as in force for the time being,shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmenwithin the meaning of that Act.(2) The provisions of the Industrial Disputes Act, 1947(14 of 1947), as in force for the time being, shallapply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmenwithin the meaning of the Act and for the purposes of any proceeding under that Act in relation to anindustrial dispute, a sales promotion employee shall be deemed, discharged or retrenched in connectionwith, or as a consequence of, that dispute or whose dismissal, discharged or retrenchment had led tothat dispute.(3) The provisions of the Minimum Wages Act, 1948(11 of 1948 ), as in force for the time being, shallapply to, or in relation to, sales promotion employees as they apply to, or in relation to, employeeswithin the meaning of that Act.(4) The provisions of the Maternity Benefit Act, 1961(53 of 1961 ), as in force for the time being, shallapply to, or in relation to, sales promotion employees, being women, as they apply to, or in relation to,women employed, whether directly or through any agency, for wages in any establishment within themeaning of that Act.(5) The provisions of the Payment of Bonus Act, 1965(21 of 1965 ), as in force for the time being, shallapply to, or in relation to, sales promotion employees as they apply to, or in relation to, employeeswithin the meaning of that Act.(6) The provisions of the Payment of Gratuity Act, 1972(39 of 1972 ), as in force for the time being,shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, employeeswithin the meaning of that Act.(7) Notwithstanding anything contained in the foregoing sub-sections, - (a) in the application of anyAct referred to in any of the said sub-section to sales promotion employees, the wages of a salespromotion employee for the purposes of such Act, shall be deemed to be his wages as computed inaccordance with the provisions of this Act;(b) where an Act referred to in any of the said sub-sections provides for a ceiling limit as to wages so asto exclude from the purview of the application of such Act persons whose wages exceed such ceilinglimit, such Act shall not apply to any sales promotion employee whose wages as computed in accordancewith the provisions of this Act exceed such ceiling limit.



1xvii 9. Penalty .If any employer contravenes the provisions of Section 4 or Section 5 or Section 7 or any rules madeunder this Act, he shall be punishable with fine which may extend to one thousand rupees.

1xviii 11. - Cognizance of offences.(1) No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try anyoffence punishable under this Act.(2) No court shall take cognizance of an offence under this Act, unless the complaint thereof is madewithin six months of the date on which the offence is alleged to have been committed.

The Beedi and Cigar Workers (Conditions of Employment) Act, 19661xix 2 (b) “Child” means a person who has not completed fourteen years of age;

(q) “Young person” means a person who has completed fourteen years of age but has not completedeighteen years of age.

1xx 25. No woman or young person shall be required or allowed to work in any industrial premises exceptbetween 6 a.m. and 7 p.m.

1xxi 33. General penalty for offence33. (1) Save as otherwise expressly provided in this Act, any person who contravenes any of theprovisions of this Act or of any rule made thereunder, or fails to pay wages or compensation in accordancewith any order of the appellate authority passed under clause (b) of sub-section (2) of section 31, shall,be punishable, for the first offence, with fine which may extend to two hundred and fifty rupees andfor a second or any subsequent offence with imprisonment for a term which shall not be less than onemonth or more than six months or with fine which not be less than one hundred rupees or more thanfive hundred rupees or with both.(2) (a) Any employer who fails to reinstate any employee in accordance with the order of the appellateauthority passed under clause (b) of sub-section (2) of a section 31, shall be punishable with finewhich may extend to two hundred and fifty rupees.(b) Any employer, who, after having been convicted under clause (a), continues, after the date of suchconviction, to fail to reinstate an employee in accordance with the order mentioned in that clause, shallbe punishable, for each day of such default, with fine which may extend to twenty rupees.(c) Any Court trying an offence punishable under this sub-section may direct that the whole or anypart of the fine, if realised, shall be paid, by way of compensation, to the person, who, in its opinion,has been injured by such failure.(3) Notwithstanding anything contained in the Payment of Wages Act, 1936 with regard to the definitionof wages, any compensation required to be paid by an employer under clause (b) of sub-section (2) ofsection 31 but not paid by him shall be recoverable as delayed wages under the provisions of that Act.(4 of 1936)(4) It shall be no defence in a prosecution of any person for the contravention of the provisions of asection 3 that any manufacturing process connected with the making of beedi or cigar or both wascarried on by such person himself or by any member of his family or by any other person living with ordependent on such person.

1xxii 43. Nothing contained in this Act shall apply to the owner or occupier of a private dwelling house whocarries on any manufacturing process in such private dwelling house with the assistance of the membersof his family living with him in such dwelling house and depended on him:Provided that the owner or occupier thereof is not an employee of an employer to whom this Actapplies.Explanation: For the purposes of this section, “family” means the spouse and children of the owner oroccupier.

The Inter State Migrant Workmen (Regulation of Employment Conditions) Act, 19791xxiii 2(e) “inter-State” migrant workman means any person who is recruited by or through a contractor in

one State under an agreement or other arrangement for employment in an establishment in anotherState, whether with or without the knowledge of the principal employer in relation to such establishment.



1xxiv 6. Prohibition against employment of inter-State migrant workmen without registrationNo principal employer of an establishment to which this Act applies shall employ inter state migrantworkmen in the establishment unless a certificate of registration in respect of such establishmentissued under this Act is in force:Provided that nothing in this section shall apply to any establishment in respect of which an applicationfor registration made within the period fixed, whether originally or on extension under sub-section (1)of Section 4 is pending before a registering officer and for the purposes of this proviso, an applicationto which the provisions of sub-section (3) of Section 4 apply shall be deemed to be pending before theregistering officer concerned till the certificate of registration is issued in accordance with the provisionsof that sub-section

1xxv 14. Displacement allowance(1) there shall be paid by the contractor to every inter-State migrant workman at the time of recruitment,a displacement allowance equal to fifty per cent of the monthly wages payable to him or seventy fiverupees, whichever is higher.(2) The amount paid to a workman as displacement allowance under sub-section (1) shall not berefundable and shall be in addition to the wages or other amounts payable to him.

15. Journey allowanceA journey allowance of a sum not less than the fare from the place of residence of the inter-Statemigrant workman in his State to the place of work in the other state shall be payable by the contractorto the workman both or the outward and return journeys and such workman shall be entitled topayment of wages during the period of such journeys as if he were on duty.



Chapter 5

Miscellaneous OffencesAssociated with Trafficking



Introduction

This Chapter deals with forms of trafficking other than trafficking for commercial sexual exploitationand trafficking for forced labour which have been discussed in previous chapters. For instance, traffickingfor adoptions and for marriage invoke provisions of personal law along with criminal law and otherprotective provisions such as in the Juvenile Justice Act, 2000. Many of the provisions detailed in thisChapter may need to be looked at in conjunction with other provisions in other Chapters.

5.1 Adoption and Trafficking

Adoption is one of the ways in which a child finds a home. Adoption is thus an important rehabilitationstrategy for a ‘child in need of care and protection’. This is in line with international standards embodiedin the Convention on the Rights of the Child, 1989 and the Hague Convention on Inter Country Adoption,1993 which India is committed to implementing. While a number of children find homes in India, somechildren are adopted by foreign nationals and thus, find a home in another country.

Most adoptions are legally done keeping in mind the ‘best interests of the child’. However, sometimeschildren are trafficked for purposes of adoption. These are illegal adoptions as the child is procuredthrough the use of force, fraud or purchase. Such illegal adoptions are made by flouting all legal procedures.The motivation for such adoptions is the large sums some people are willing to pay in their desire toobtain a child coupled with wrongful acts by agencies willing to extract the highest amount possible inviolation of the Central Adoption Resource Agency (CARA) Guidelines and by bypassing procedures.

Legal provisions relating to adoptions are contained in the following laws-

5.1.1 The Hindu Adoptions and Maintenance Act, 1956

This Act deals with adoptions among Hindus. It is also applicable to non-Hindus like Buddhists, Sikhsand Jains. This law creates a parent-child relationship between the adopting parent and the child.Adoptions may be made by parents or by guardians. If it is by parents, it can be done directly with nocourt intervention. All adoptions which are not done by parents, i.e., adoptions done by other guardians,will have to go through a court processi. Buying of children for adoption would be punishable not onlyunder the provisions contained in Chapter 2 etc., but also would be actionable under the Hindu Adoptionsand Maintenance Act with imprisonment for six months and fine. Prosecutions may be instituted withthe previous sanction of the State Governmentii.

This Act also lays down the requisites of a valid adoption.iii A person adopting should have the capacityto adopt, the person giving in adoption should be capable of giving, and the person to be adoptedshould be capable of being taken in adoption. The requirements are cumulative and must all be compliedwith.

A person is capable of taking in adoption ifiv v the person is a male Hindu who is of sound mind and isnot a minor, and has completed the age of eighteen years. Such a person has the capability to take a sonor a daughter in adoption. Adoption by a person of unsound mind is no adoption at all. The capacity ofa male Hindu to adopt a son or daughter recognised by this section is circumscribed by the rule enactedin the proviso that in case he has a wife living, he has no right to adopt except with the consent of thewife. A female Hindu who is of sound mind and has completed the age of 18 years can take a son or adaughter in adoption provided she is a widow, or is a divorcee or, if married, her husband has finallyrenounced the world or ceased to be a Hindu or has been declared to be of unsound mind by a courthaving competent jurisdiction. The person adopting, the child adoptedvi and the person giving in adoptionmust be Hindus. The child should not ordinarily be above fifteen years of age. Additional rules placelimits on how many children, of what sex, etc.vii



5.1.2 The Guardians and Wards Act, 1890This Act deals with guardianship of a child. This law is used by those who cannot use the HinduAdoptions and Maintenance Act. Adoptions under this law create only a guardian-ward relationship andnot a parent-child one.

All appointments as guardians must be done through a court process. Where the court is satisfied thatit is for the welfare of the minor, an order will be made appointing a guardian of a minorviii Persons whowish to become guardians may apply for such orderix. Jurisdiction is with the District Court/ FamilyCourt (if any) under whose jurisdiction the minor residesx. A guardian must ensure that the child istaken care of. Foreigners may also be appointed guardians under this Act, provided the appropriateCourt has received the Clearance Certificate from the Adoption Coordination Agency (ACA earlier calledVCA- Voluntary Coordination Agency) as prescribed by CARA guidelines.

5.1.3 CARA GuidelinesCARA Guidelines are given by the Central Adoption Resource Agency, which has special relevance tointer-county as well as in-country adoptions.

Many a times adoptions are carried out in violation of standards prescribed by the these Guidelines. Themotivation in such cases has been varied e.g. illegal transfer of babies abandoned in hospitals or nursinghomes, monetary gain in terms of high fees charged from Non Resident Indians (NRIs) and foreignersabove the permissible limit prescribed by CARA, etc. There is also a concern that children may betrafficked to be given in adoption to parents either within India or outside

CARA must be informed for necessary action in case these guidelines are violated, whether such violationhappens in India or abroad. Although CARA can only delicense agencies violating the guidelines, it canbring it to the notice of the relevant authorities for action.

5.1.4 Juvenile Justice Act, 2000Adoption is seen by this Act as one of the many options to rehabilitate a child and provide a child witha home.xi However, adoptions are not usually made under this Act, they are made in accordance with theHindu Adoptions and Maintenance Act or the Guardians and Wards Act.

In addition to the above laws, a number of general provisions may also be relevant in cases of traffickingfor adoption. A detailed discussion of these provisions is found in Chapter 2.

5.2 Transplantation of Human Organs and Trafficking

IntroductionThe progress of technology and know-how in the area of medicine has made it possible to replace deador sick organs. This has created an ever-increasing demand for healthy organs from donors to replaceunhealthy organs in recipients. An increased demand and insufficient supply has given rise to a newcrime - trafficking for organs. People are lured under various pretexts into cities, or sometimes evenother countries, where their organs are either bought or stolen.

In India, the Transplantation of Human Organs Act 1994, deals with the prevention of commercialdealings in human organs along with regulation of removal, storage, and transplantation of humanorgans for therapeutic purposes.

5.2.1 Indian Penal Code, 1860While the Indian Penal Code does not specifically deal with transplant of organs, many of the generalprovisions can be effectively used in cases of organ trafficking. These have been discussed in Chapter 2.



5.2.2 Transplantation of Human Organs Act, 1994Criminal responsibility in cases of harvesting of organs and trafficking of persons for this purposeincludes traffickers, procurers, brokers, intermediaries, hospital/ nursing staff and medical laboratorytechnicians involved in the illegal transplant procedure. Those who abet in any way would be equallyliable.

There are many people who wish to donate their organs when their death. Section 3xii facilitates suchdonations. It allows only donations authorized by a person lawfully in possession of the body. Suchdonations may be either in accordance with the expressed wish of the deceased, or at least if there wasno objection by the deceased and no objections by his near relatives.

The procedure to be followed is that the person lawfully in possession grant to a registered medicalpractitioner reasonable facilities to remove the human organ from the dead body. The removal must bedone by such practitioner and before doing so, he must satisfy himself by personal examination that lifeis extinct.

In the case of brain stem death, no removal should be done unless a Board of medical experts certifiesthat brain stem death has occurred.

In the case of living persons, no organ may be removed or transplanted except for therapeutic purposes.xiii

Punishment for removal of human organ without authority (18)xiv

If a person associates with a hospital and provides any kind of services for transplantation or removal oforgans without authority, he will be punishable with imprisonment up to five years with fine up to tenthousand rupees. If the transplantation has been done by a registered medical practitioner, withoutauthority, his name will be removed from the Register of the Medical Council for a period of two yearsfor the first offence and permanently removed for the second offence.

Punishment for commercial dealings in human organs (19)xv

This section punishes trafficking in human organs and those who receive, make, supply, or advertisepayment for human organ transplantation. It also punishes those who seek willing people or offer tosupply organs. Negotiating arrangements, being part of the management of a body etc. are also consideredcommercial dealings. The punishment is imprisonment from two to five years with fine of ten thousandrupees which may extend to twenty thousand rupees.

Cognizance of offence (22)xvi

When an appropriate authority or an officer appointed on behalf of the Central or the State government,makes a complaint, on behalf of State or the Central Government, the Metropolitan Magistrate or aJudicial Magistrate of the First Class can take cognizance of the offence. If instances of trafficking inhuman organs surface, the police must bring it to the notice of the appropriate authority.

5.3 Organized Crimes and Trafficking in Human Beings

Trafficking is a crime that would normally involve more than one person, who may be the procurer,transporter, seller, buyer, financier, etc. These persons normally operate as a network and engage intrafficking. This is the reason why the crime of trafficking may constitute an organized crime carriedout by an organized group.

According to the United Nations Convention against Transnational Organised Crime1 “Organised criminalgroup” means a structured group of three or more persons, existing for a period of time and acting in

1. Article 2 (a) United Nations Convention on Transnational Organized Crime, 2000



concert with the aim of committing one or more serious crimes or offences established in accordancewith the Convention, in order to obtain, directly or indirectly, a financial or other material benefit.

In India at present, we have no specific Central legislation which deals with organized crimes. Theearlier laws which have now been repealed and dealing with organized crimes were the POTA2 andTADA3. However, several states have local legislations in addressing organized crime. For e.g. MCOCA inMaharashtra and Delhi.

General laws which may deal with organized crime in India are:

A Indian Penal Code, 1860 Section

Acts done in furtherance of a common intention 34

Abetment 107-117

Conspiracy 120A, 120 B

Attempt to commit offences 511

B The Prevention of Corruption Act Public servant taking gratification other than legal remunerationin respect of an official Act 7

Taking gratification, in order, by corrupt or illegal means toinfluence public servant 8

Taking gratification for exercise of personal influence with public servant 9

Punishment for abetment by public servant of offences definedin section 8 or 9 10

Public servant obtaining valuable thing, without consideration from personconcerned in proceeding or business transacted by such public servant 11

Criminal misconduct by a public servant 13

Persons authorised to investigate 17

Presumption where public servant accepts gratification otherthan legal remuneration 20

A. The Indian Penal Code, 1860Under the IPC, there are no specific provisions, which deal with organized crimes. There might besections, however, which prove useful, which have been listed out in the Chart above and have beendiscussed in Chapter 2 dealing with General Provisions.

B. Prevention of Corruption Act, 1988This has already been discussed in Chapter 2 dealing with General Provisions.

5.4 Trafficking for the Purpose of Marriage

IntroductionTrafficking in women and young girls is also done for purposes of marriage. One of the main reasons forthis is the falling sex ratio which means that there are fewer brides available for young men. In someparts of the country, the problem is so acute that brides are brought from different states and sometimesfrom across our borders. Many of these women also come from poorer families and have no say in themarriage. Sometimes, the marriage is a sham one and is entered into only for the sake of gaining controlof the woman concerned. This woman may then be forced into prostitution or sold in marriage tosomeone else.

2. Prevention of Terrorism Act, 20023. Terrorist and Disruptive Activities (Prevention) Act, 1987



Specific laws/ provisions can be used to tackle trafficking for the purposes of marriage. These include-

A Indian Penal Code, 18601 Kidnapping, abducting or inducing woman to compel her marriage 3662 Cohabitation caused by a man deceitfully inducing a belief of lawful marriage 4933 Marriage ceremony fraudulently gone through without lawful marriage 496B The Prohibition of Child Marriage Act, 2006

All Sections

A. The Indian Penal Code, 1860

Kidnapping, abducting or inducing woman to compel her marriage, etc. (366)xvii

Traffickers often use inducement such as monetary gain to the woman/ parents of young girls or engagein outright kidnapping of girls and women to be sold as brides to families of young men who are willingto pay a price. Here the procurer, the relatives of the young men and all those who harbour, transportor otherwise abet the trafficking would be liable either under this section or for abetment of the offenceunder this section. An offence under this provision entails a punishment of imprisonment for ten yearsand fine.

An offence under this section is cognizable, non bailable, non-compoundable andtriable by Court of Sessions.

Cohabitation caused by a man deceitfully inducing a belief of lawful marriage (493)xviii

This section is applicable to a man who enters into a fake marriage with a woman and has sexualintercourse with her. The ploy of fake marriages is often used by men who marry girls and bring theminto the trafficking network. Offence under this section entails a punishment of imprisonment for tenyears and fine.

Offences under this section are non-cognizable, non-bailable, non-compoundableand triable by a Magistrate of the first class.

Marriage ceremony fraudulently gone through without lawful marriage (496)xix

This is also a provision applicable to fake marriages as the earlier one. This provision can be used in awider number of cases as it does not require the element of sexual intercourse. Thus, any person includingtraffickers, who enters into a fake marriage with a woman can be punished at that point itself. This isan important provision as fake marriages are one of the ways in which women and children are broughtinto the trafficking network. An offence under this provision is punishable with seven years imprisonment.

The offence under this section is non-cognizable, bailable, non compoundableand triable by a Magistrate of the first class.

A. The Prohibition of Child Marriage Act, 2006This Act restrains the solemnization of child marriages. A child under this Act is defined as a male belowtwenty one and a woman below eighteen years of age. A minor is defined as a person of either sex whois under eighteen years of age. If either the bride or groom is a child, it would amount to a childmarriage.

The Act provides for punishment for a variety of crimes associated with child marriages. It also has adirect provision dealing with trafficking holding such marriages null and void.4

4. Section 12



Marriage of a minor child to be void in certain circumstances (12)xx

This section holds certain marriages to be void. Marriages where the minor has been taken out of lawfulguardianship, or is by force compelled, or by any deceitful means induced to go from any place; or sold,or trafficked or used for immoral purposes are null and void.

Under the Act, the Court of the Judicial Magistrate of the first class or the Metropolitan Magistrate isempowered to take suo moto cognizance of the offence on the basis of any reliable report or information.Complaints may also be made by any person having personal knowledge or reason to believe or even anon governmental organization. The District Magistrate shall be deemed to be the Child MarriageProhibition Officer for the purposes of preventing the solemnization of child marriages. All offencesunder this Act are cognizable and non bailable. No woman under this Act can be punished withimprisonment.xxi

Child Marriage Prohibition Officers are notified by the State Government and such Officers have the dutyof preventing child marriages as well as collection of evidence for prosecutionxxii

5.5 Miscellaneous

Various other forms of trafficking

Newer forms of crimes of trafficking emerge every now and then. Internet Pornography has been discussedearlier in the Chapter on Child Sexual Abuse and Trafficking. This is a new form of trafficking which canbe dealt with under the IPC provisions and the Information of Technology Act, 2000 (Sec. 67). Laws thusexist to deal with various forms for which trafficking takes place. In dealing with such forms of trafficking,different Chapters of this document may have to be referred to. For example-

• Camel jockeying - general provisions including kidnapping, provisions relating to inter countrytrafficking, general provisions in the IPC relating to forced labour, hurt, grievous hurt etc., specialprovisions applicable to children under the Juvenile Justice Act, etc.

• Domestic Work - the chapter on labour law and labour standards with specific reference to childlabour if a child is engaged in domestic work.

• Circus - general provisions relating to forced labour, hurt, grievous hurt etc., special provisionsapplicable to children under the Juvenile Justice Act, etc. provisions relevant to child labour, etc.



ENDNOTESThe Hindu Adoptions and Maintenance Act, 1956

i 9 - (1) No person except the father or mother or the guardian of a child shall have the capacity to givethe child in adoption.(2) Subject to the provisions of sub-section (3) the father, if alive, shall alone have right to give inadoption, but such right shall not be exercised save with the consent of the mother, unless the motherhas completely and finally renounced the world or has ceased to be a Hindu or has been declared by acourt of competent jurisdiction to be of unsound mind.(3) The mother may give the child in adoption if the father is dead or has completely and finallyrenounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdictionto be of unsound mind.(4) Where both the father and mother are dead or have completely and finally renounced the world orhave abandoned the child or have been declared by a court of competent jurisdiction to be of unsoundmind or where the parentage of the child is not known, the guardian of the child may give the child inadoption with the previous permission of the court to any person including the guardian himself.(5) Before granting permission to a guardian under sub-section (4), the court shall be satisfied that theadoption will be for the welfare of the child, due consideration being for this purpose given to thewishes having regard to the age and understanding of the child, and that the applicant for permissionhas not received or agreed to receive and that no person has made or given or agreed to make or giveto the applicant any payment or reward in consideration of the adoption except such as the court maysanction.Explanation-For the purposes of this section-(i) the expressions “father” and “mother” do not include an adoptive father and an adoptive mother,(i-a) “guardian” means aperson having the care of the person of a child or of both his person andproperty and includes-(a) a guardian appointed by will of the child’s father or mother; and(b) a guardian appointed or declared by a court; and

ii 17 -(1) No person shall receive or agree to receive any payment or other reward in consideration of theadoption of any person, and no person shall make or give or agree to make or give to any other personany payment or reward the receipt which is prohibited by this section.(2) If any person contravenes the provisions of sub-section (1), he shall be punishable with imprisonmentwhich may extend to six months or with fine or with both.(3) No prosecution under this section shall be instituted without the previous sanction of the StateGovernment or an officer authorised by the State Government in this behalf.

iii 6- No Adoption shall be valid unless —(i) the person adopting has the capacity, and also the right to take in adoption;(ii) the person giving in adoption has the capacity to do so;(iii) the person adopted is capable of being taken in adoption;(iv) the adoption is made in compliance with the other conditions mentioned in this chapter.

iv 7-. Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or adaughter in adoption:Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless thewife has completely and finally renounced the world or has ceased to be a Hindu or has been declaredby a court of competent jurisdiction to be of unsound mind.Explanation-If a person has more than one wife living at the time of adoption, the consent of all the wives isnecessary unless the consent of any one of them is unnecessary for any of the reasons specified in thepreceding proviso.

v 8- Any female Hindu —(a) who is of sound mind,(b) who is not a minor, and



(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead orhas completely and finally renounced the world or has ceased to be a Hindu or has been declared by acourt of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter inadoption.

vi 10- No person shall be capable of being taken in adoption unless the following conditions are fulfilled,namely:—(i) he or she is a Hindu;(ii) he or she has not already been adopted;(iii) he or she has not been married, unless there is a custom or usage applicable to the parties whichpermits persons who are married being taken in adoption;(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicableto the parties which permit persons who have completed the age of fifteen years being taken inadoption.

vii 11- In every adoption, the following conditions must be complied with: —(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must nothave a Hindu son, son’s son, or son’s son’s son (whether by legitimate blood relationship or by adoption)living at the time of adoption;(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made mustnot have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption)living at the time of adoption;(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at leasttwenty-one years older than the person to be adopted;(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at leasttwenty-one years older than the person to be adopted;(v) the same child may not be adopted simultaneously by two or more persons;(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardianconcerned or under their authority with intent to transfer the child from the family of its birth, or incase of an abandoned child or a child whose parentage is not known, from the place or family where ithas been brought up to the family of its adoption:Provided that the performance of datta homam shall not be essential to the validity of an adoption.

The Guardians and Wards Act, 1890viii 7- Power of the court to make order as to guardianship

(1) Where the court is satisfied that it is for the welfare of a minor that an order should be made -(a) appointing a guardian of his person or property, or both, or(b) declaring a person to be such a guardian, the court may make an order accordingly.(2) An order under this section shall imply the removal of any guardian who has not been appointed bywill or other instrument or appointed or declared by the court.(3) Where a guardian has been appointed by will or other instrument or appointed or declared by thecourt, an order under this section appointing or declaring another person to be guardian in his steadshall not be made until the powers of the guardian appointed or declared as aforesaid have ceased underthe provisions of this Act.

ix 8- Persons entitled to apply for orderAn order shall not be made under the last foregoing section except on the application of —(a) the person desirous of being, or claiming to be, the guardian of the minor; or(b) any relative or friend of the minor; or(c) the Collector of the district or other local area within which the minor ordinarily resides or in whichhe has property; or(d) the Collector having authority with respect to the class to which the minor belongs.

x 9- Court having jurisdiction to entertain application(1) If the application is with respect to the guardianship of the person of the minor, it shall be made tothe District Court having jurisdiction in the place where the minor ordinarily resides.



(2) If the application is with respect to the guardianship of the property of the minor, it may be madeeither to the District Court having jurisdiction in the place where the minor ordinarily resides, or to aDistrict Court having jurisdiction in a place where he has property.(3) If an application with respect to the guardianship of the property of a minor is made to a DistrictCourt other than that having jurisdiction in the place where the minor ordinarily resides, the court mayreturn the application if, in its opinion, the application would be disposed of more justly or convenientlyby any other District Court having jurisdiction.

The Juvenile Justice (Care and Protection of Children) Act, 2000xi 40. Process of rehabilitation and social reintegration

The rehabilitation and social reintegration of a child shall begin during the stay of the child in achildren’s home or special home and the rehabilitation and social reintegration of children shall becarried out alternatively by (i) adoption, (ii) foster care, (iii) sponsorship, and (iv) sending the child toan after-care organization.

The Transplantation of Human Organs Act, 1994xii 3. Authority for removal of human organs.

(1) Any donor may, in such manner and subject to such conditions as may be prescribed, authorise theremoval, before his death, of any human organ of his body for therapeutic purposes.(2) If any donor had, in writing and in the presence of two or more witnesses (at least one of whom isa near relative of such person), unequivocally authorised at any time before his death, the removal ofany human organ of his body after his death for therapeutic purposes, the person lawfully in possessionof the dead body of the donor shall, unless he has any reason to believe that the donor had subsequentlyrevoked the authority aforesaid, grant to a registered medical practitioner all reasonable facilities forthe removal, for therapeutic purposes, of that human organ from the dead body of the donor.(3) Where no such authority as is referred to in sub-section (2) was made by any person before hisdeath, but no objection was also expressed by such person to any of his human organs being used afterhis death for therapeutic purposes, the person lawfully in possession of the dead body of such personmay, unless he has reason to believe that any near relative of the deceased person has objection to anyof the deceased person’s human organs being used for therapeutic purposes, authorise the removal ofany human organ of the deceased person for its use for therapeutic purposes.(4) The authority given under sub-section (1) or sub-section (2) or, as the case may be, sub-section (3)shall be sufficient warrant for the removal, for therapeutic purposes, of the human organ; but no suchremoval shall be made by any person other than the registered medical practitioner.(5) Where any human organ is to be removed from the body of a deceased person, the registeredmedical practitioner shall satisfy himself, before such removal, by a personal examination of the bodyfrom which any human organ is to be removed, that life is extinct in such body or, where it appears tobe a case of brain-stem death, that such death has been certified under sub-section (6).(6) Where any human organ is to be removed from the body of a person, in the event of his brain-stemdeath, no such removal shall be undertaken unless such death is certified, in such form and in suchmanner and on satisfaction of such conditions and requirements as may be prescribed, by any Board ofmedical experts consisting of the following, namely:—(i) the registered medical practitioner in charge of the hospital in which brain-stem death has occurred;(ii) an independent registered medical practitioner, being a specialist, to be nominated by the registeredmedical practitioner specified in clause (i) from the panel of names approved by the Appropriate Authority;(iii) a neurologist or a neurosurgeon to be nominated by the registered medical practitioner specified inclause (i), from the panel of names approved by the Appropriate Authority; and(iv) the registered medical practitioner treating the person whose brain-stem death has occurred.(7) Notwithstanding anything contained in sub-section (3), where brain-stem death of any person lessthan eighteen years of age occurs and is certified under sub-section (6), any of the parents of thedeceased person may give authority, in such form and in such manner as may be prescribed for theremoval of any human organ from the body of the deceased person.

xiii 11. Prohibition of removal or transplantation of human organs for any purpose other than therapeuticpurposesNo donor and no person empowered to give authority for the removal of any human organ shall authorizethe removal of any human organ for any purpose other than therapeutic purposes.



xiv 18. Punishment for removal of human organ without authority(1) Any person who renders his services to or at any hospital and who, for purposes of transplantation,conducts, associates with, or helps in any manner in the removal of any human organs without authority,shall be punishable with imprisonment for a term which may extend to 5 years and with fine which mayextend to ten thousand rupees.(2) Where any person convicted under sub-section (1) is a registered medical Practitioner, his nameshall be reported by the Appropriate Authority to the respective State Medical Council for takingnecessary action including the removal of his name from the register of the council for a period of twoyears for the first offence and permanently for the subsequent offence.

xv 19. Punishment for commercial dealings in human organsWhoever - (a) makes or receives any payment for the supply of, or for an offer to supply, any humanorgan;(b) seeks to find a person willing to supply for payment any human organ;(c) offers to supply any human organ for payment;(d) initiates or negotiates any arrangement involving the making of any payment for the supply of, orfor an offer to supply, any human organ;(e) takes part in the management or control of a body of persons, whether a society, firm, or company,whose activities consist of or include the initiation or negotiation of any arrangement referred in clause(d); or(f) publishes or distributes or causes to be published or distributed any advertisement—(i) inviting persons to supply for payment of any human organ; or(ii) offering to supply any human organ for payment; or(iii) indicating that the advertiser is willing to initiate or negotiate any arrangement referred to inclause (d) shall be punishable with imprisonment for a term which shall not be less than two years butwhich may extend to seven years, and shall be liable to fine which shall not be less than ten thousandrupees but may extend to twenty thousand rupees; provided that the court may, for any adequate andspecial reason to be mentioned in the judgment, impose a sentence of imprisonment for a term of lessthan two years and a fine less than ten thousand rupees.

xvi 22. Cognizance of offence(1) No court shall take cognizance of an offence under this Act except on a complaint made by—(a) The Appropriate Authority concerned, or any officer authorized in this behalf by the CentralGovernment or the State Government, as the case may be, Appropriate Authority; or(b) a person who has given notice of not less than sixty days, in such manner as may be prescribed, tothe Appropriate Authority concerned, of the alleged offence and of his intention to make a complaintin the court.(2) No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shalltry any offence punishable under this Act.(3) Where a complaint has been made under clause (b) of sub-section (1), the court may, on demand bysuch person, direct the Appropriate Authority to make available copies of the relevant records in itspossession to such person.

The Indian Penal Code, 1860xvii 366. Kidnapping, abducting or inducing woman to compel her marriage, etc

Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to belikely that she will be compelled, to marry any person against her will, or in order that she may beforced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced toillicit intercourse, shall be punished with imprisonment of either description for a term which mayextend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation asdefined in this Code or of abuse of authority or any other method of compulsion, induces any womanto go from any place with intent that she may be, or knowing that it is likely that she will be, forced orseduced to illicit intercourse with another person shall be punishable as aforesaid.

xviii 493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriageEvery man who by deceit causes any woman who is not lawfully married to him to believe that she islawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be



punished with imprisonment of either description for a term which may extend to ten years and shallalso be liable to fine.

xix 496. Marriage ceremony fraudulently gone through without lawful marriage-Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married,knowing that he is not thereby lawfully married, shall be punished with imprisonment of either descriptionfor a term which may extend to seven years, and shall also be liable to fine.

The Prohibition of Child Marriage Act, 2006xx 12. Marriage of a minor child to be void in certain circumstances

Where a child, being a minor-(a) is taken or enticed out of the keeping of the lawful guardian; or(b) by force compelled, or by any deceitful means induced to go from any place; or(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor ismarried after which the minor is sold or trafficked or used for immoral purposes such marriage shall benull and void.

xxi 13. Power of court to issue injunction prohibiting child marriages(1) Notwithstanding anything to the contrary contained in this Act, if, on an application of the ChildMarriage Prohibition Officer or on receipt of information through a complaint or otherwise from anyperson, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a childmarriage in contravention of this Act has been arranged or is about to be solemnised, such Magistrateshall issue an injunction against any person including a member of an organisation or an association ofpersons prohibiting such marriage.(2) A complaint under sub-section (1) may be made by any person having personal knowledge or reasonto believe, and a non-governmental organisation having reasonable information, relating to the likelihoodof taking place of solemnisation of a child marriage or child marriages.(3) The Court of the Judicial Magistrate of the first class or the Metropolitan Magistrate may also takesuo motu cognizance on the basis of any reliable report or information.(4) For the purposes of preventing solemnisation of mass child marriages on certain days such asAkshaya Trutiya, the District Magistrate shall be deemed to be the Child Marriage Prohibition Officerwith all powers as are conferred on a Child Marriage Prohibition Officer by or under this Act.(5) The District Magistrate shall also have additional powers to stop or prevent solemnisation of childmarriages and for this purpose, he may take all appropriate measures and use the minimum forcerequired.(6) No injunction under sub-section (1) shall be issued against any person or member of any organisationor association of persons unless the Court has previously given notice to such person, members of theorganisation or association of persons, as the case may be, and has offered him or them an opportunityto show cause against the issue of the injunction:Provided that in the case of any urgency, the Court shall have the power to issue an interim injunctionwithout giving any notice under this section.(7) An injunction issued under sub-section (1) may be confirmed or vacated after giving notice andhearing the party against whom the injunction was issued.(8) The Court may either on its own motion or on the application of any person aggrieved, rescind oralter an injunction issued under sub-section (1).(9) Where an application is received under sub-section (1), the Court shall afford the applicant an earlyopportunity of appearing before it either in person or by an advocate and if the Court, after hearing theapplicant rejects the application wholly or in part, it shall record in writing its reasons for so doing.(10) Whoever knowing that an injunction has been issued under sub-section (1) against him disobeyssuch injunction shall be punishable with imprisonment of either description for a term which mayextend to two years or with fine which may extend to one lakh rupees or with both:Provided that no woman shall be punishable with imprisonment.

xxii 16. Child Marriage Prohibition Officers(1) The State Government shall, by notification in the Official Gazette, appoint for the whole State, orsuch part thereof as may be specified in that notification, an officer or officers to be known as the ChildMarriage Prohibition Officer having jurisdiction over the area or areas specified in the notification.



(2) The State Government may also request a respectable member of the locality with a record of socialservice or an officer of the Gram Panchayat or Municipality or an officer of the Government or anypublic sector undertaking or an office bearer of any non-governmental organisation to assist the ChildMarriage Prohibition Officer and such member, officer or office bearer, as the case may be, shall bebound to act accordingly.(3) It shall be the duty of the Child Marriage Prohibition Officer—(a) to prevent solemnisation of child marriages by taking such action as he may deem fit;(b) to collect evidence for the effective prosecution of persons contravening the provisions of this Act;(c) to advise either individual cases or counsel the residents of the locality generally not to indulge inpromoting, helping, aiding or allowing the solemnisation of child marriages;(d) to create awareness of the evil which results from child marriages;(e) to sensitize the community on the issue of child marriages;(f) to furnish such periodical returns and statistics as the State Government may direct; and(g) to discharge such other functions and duties as may be assigned to him by the State Government.(4) The State Government may, by notification in the Official Gazette, subject to such conditions andlimitations, invest the Child Marriage Prohibition Officer with such powers of a police officer as may bespecified in the notification and the Child Marriage Prohibition Officer shall exercise such powerssubject to such conditions and limitations, as may be specified in the notification.(5) The Child Marriage Prohibition Officer shall have the power to move the Court for an order undersections 4, 5 and 13 and along with the child under section 3.



Chapter 6

International Law StandardsRelating to HumanTrafficking



6.1 Introduction to International Law

It is relevant to understand the significance of international law so as to appreciate its applicability tothe crime of trafficking. International legal instruments may be ‘charter based’ or ‘treaty based’. Charter-based instruments are those that have been drafted as a result of the resolutions and decisions of theUN system, for example, the UN Charter and the Universal Declaration of Human Rights. These instrumentsare monitored by charter-based bodies such as the Commission on Human Rights, which meets for sixweeks each year in Geneva. The other kind of international legal instruments are agreements or covenantssigned by State Parties, and these act as a commitment by these respective State Governments to abideby the provisions of that treaty or agreement. Some of these instruments are the Civil and PoliticalRights Convention, the Economic, Social and Cultural Rights Convention, the Child Rights Convention,etc. A full list of these Conventions and their monitoring bodies is appended at Annexure I. There aresome important ways in which a State Party may show its acceptance of a treaty. The first is that ofsigning the treaty at a time when the treaty has been passed and a period is reserved for signatures. Thenext is that of ratification, at which stage, State Parties may ratify the whole convention or may ratifywith reservations or conditions on specific Articles that they cannot comply with citing reasons. Thethird is that of accession by State Parties to a treaty. Those parties who have not signed the treatypreviously may do so after the period which was open for signatures.

Details of some International Instruments signed/ ratified by India are mentioned in Annexure II.

Ratification by a State Party of any agreement makes it binding on that State to report to Committeesand treaty monitoring bodies about what progressive steps it has taken for the realization of the rightscontained in that treaty.

The Constitution states that the State shall endeavour to foster respect for international law and treatyobligations1. In India, the mode of legislative ratification is being followed. This means that where theGovernment of India has ratified any Convention, all attempts are made to ensure that the provisions ofthat Convention are enshrined in domestic legislation that should be passed. This position is differentfrom the United States where, if the Government ratifies any convention, the provisions of such aconvention become enforceable with immediate effect.

The nature and scope of obligations of a State under international human rights law depends on thetype of legal system a State belongs to. Under a ‘monist’ regime, obligations under international humanrights law are as binding as, if not more superior to, the national constitutional obligations. Under a‘dualist’ regime, as in India, obligations are not directly binding unless there is an explicit measure,through enactment of a statute, to internalize these obligations2.

6.2 International Law and Trafficking

Since the problem of trafficking has international implications and ramifications, it would be useful tolook at the international law regime that exists so that law enforcement agencies may be able to usethese provisions effectively, especially where they would have to deal with trafficking across differentcountries. The provisions contained in these documents would be useful as persuasive tools when dealingwith Committees and other bodies before whom the State Parties report as to the status of trafficking toensure that the human rights of affected persons is protected. Law enforcement agencies can work intandem with NGOs and other civil society formations to ensure that there is greater compliance with thecommitments made by State Parties when signing the convention.

1 Article 51(c)2 Handbook on Human Rights for Judicial Officers, NIHR, National Law School of India University, Bangalore (2000) at pg.

4



A number of international instruments have a bearing on human trafficking. These fall within categoriesof UN Conventions in general, conventions focusing specifically on trafficking, and International LabourOrganization Conventions. There is thus a wide range of conventions and treaties that are relevant totrafficking and it would not be possible to go into the whole gamut of these since their applicability forlaw enforcement officials would be limited. Therefore, we will discuss, in brief, those which have a directbearing on the issue of trafficking.

A. The Universal Declaration of Human RightsB. The Suppression of Traffic ConventionC. The International Covenant for Civil and Political Rights (ICCPR)D. The International Covenant for Economic, Social, and Cultural Rights, (ICESCR)E. The Convention on Elimination of all Forms of Discrimination Against Women (CEDAW)F. The Convention on the Rights of the ChildG. The SAARC Conventions that have been ratified by IndiaH. Supplementary Convention on the Abolition of Slavery, Slave Trade, and Institutions and Practices

Similar to SlaveryI. The Forced Labour Convention of the International Labour Organisation (See Annexure III for

details of major ILO Conventions ratified by India,)J. UN Convention on Transnational Organised Crime (discussed in sub Chapter 6.7)

A brief analysis of each convention is mentioned with its significance for trafficking. The present statusand utility of international law remains restricted to a few actors, but law enforcement officials have arole to play. This is an emerging area for advocacy for enforcement agencies to function more effectivelywith the use of international instruments, since trafficking is a crime of international proportions, andthere is a need for international law to be used creatively by law enforcement agencies in order toensure justice to the victims of trafficking.

A. Universal Declaration of Human Rights3 i

The Declaration was one of the first major achievements of the United Nations. It was first time inhistory that a document considered to have universal value was adopted by an international organisation.It was also the first time that human rights and fundamental freedoms were set forth in such detail. TheDeclaration has been used in the defence and advancement of people’s rights. Its principles have beenenshrined in and continue to inspire national legislation and the Constitutions of many newly independentstates. References to the Declaration have been made in Charters and Resolutions of regionalintergovernmental organisations as well as in treaties and resolutions adopted by the United Nationssystem. The General Assembly proclaimed the Declaration as a “common standard of achievement for allpeoples and all nations,” towards which individuals and societies should “strive by progressive measures,national and international, to secure their universal and effective recognition and observance.”

Even though this Declaration does not foresee a formal entry into force and consequent ratification oracceptance, it plays a fundamental role among the UN legal instruments for the protection of humanrights.

B. Convention for the Suppression of the Traffic in Persons and of the Exploitation of theProstitution of Others4 ii

The Convention declares that the enslavement of women and children subjected to commercial sexualexploitation is incompatible with the dignity and fundamental rights of the human person. The Conventionforesees a number of activities aiming at preventing commercial sexual exploitation (through, among

3 Adopted on December 10, 1948, Articles: 3, 4, 5 http://www.unicri.it/wwd/trafficking/minors/docs_ilr/universal_declaration_of_human_rights.pdf

4 Entered into force on July 25, 1951, Articles 1, 2, 4, 16, 17 and 20 http://www.unicri.it/wwd/trafficking/minors/docs_ilr/1949_Convention_Suppression_traffic.pdf



others, education and improvement of the role of women in the society) and at curbing pornographythrough criminalization and punishment of all forms of procurement. Member States commit themselvesto eliminating all forms of discriminations that ostracize victims of commercial sexual exploitation.

Member States should cooperate in the identification of international networks of procurers and, if theyare members of the International Criminal Police Organization, to cooperate with that organisation tomake the suppression of the traffic in persons one of its priorities.

C. International Covenant on Civil and Political Rights5 iii

The Covenant (see also the notes on the International Covenant on Economic, Social, and CulturalRights) includes Articles focusing on slavery and slave trade, liberty of movement and security andprotection measures for children.

D. International Covenant on Economic, Social, and Cultural Rights6 iv

The International Covenant on Economic, Social, and Cultural Rights (1966), together with the UniversalDeclaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966),make up the International Bill of Human Rights. In accordance with the Universal Declaration, theCovenants recognize that the ideal of human beings to be free can be achieved only if conditions arecreated whereby everyone may enjoy his civil and political rights, as well as his economic, social, andcultural rights. Article 10.3 of the Covenant on Economic, Social, and Cultural Rights states that “specialmeasures of protection and assistance should be taken on behalf of all children and young personswithout any discrimination for reasons of parentage or other conditions. Children and young personsshould be protected from economic and social exploitation. Their employment in work harmful to theirmorals or health, or dangerous to life, or likely to hamper their normal development should be punishableby law. States should also set age limits below which the paid employment of child labour should beprohibited and punishable by law.”

E. Convention on the Elimination of all forms of Discrimination against Women (CEDAW)7 v

The Convention is often described as the international bill of women’s rights. The Convention definesdiscrimination against women as “...any distinction, exclusion or restriction made on the basis of sexwhich has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise bywomen, irrespective of their marital status, on a basis of equality of men and women, of human rightsand fundamental freedoms in the political, economic, social, cultural, civil, or any other field.” TheConvention provides the basis for realizing equality between women and men through ensuring women’sequal access to, and equal opportunities in, political and public life — including the right to vote andto stand for election — as well as education, health and employment. States parties also agree to takeappropriate measures against all forms of traffic in women and exploitation of women.

F. Convention on the Rights of the Child8 vi

The Convention offers a vision of the child as an individual and as a member of a family and community,with rights and responsibilities appropriate to his or her age and stage of development. The Conventionfocuses on the following principles: the child is an individual, he/ she is unique, has special needs,needs support and protection, the child’s integrity must be respected, the child’s right to express his/her opinion, the child has his/ her own rights. Prior to or shortly after ratifying the Convention on theRights of the Child, States are required to bring their national legislation into line with its provisions —

5 Entered into force on March 23, 1976. Articles 8, 24 http://www.unicri.it/wwd/trafficking/minors/docs_ilr/international_covenant_on_civil_and_political_rights.pdf

6 Entered into force on January 3, 1976. Article 10.3http://www.unicri.it/wwd/trafficking/minors/docs_ilr/international_covenant_on_economic.pdf

7 Entered into force on September 3, 1981. Articles: 1, 3, 5, 6, 10, 11http://www.unicri.it/wwd/trafficking/minors/docs_ilr/1979_cedaw.pdf

8 Entered into force on September 2, 1990. Articles: 1, 11, 19, 32.1, 34, 35, 36Ratified by all UN countries except Somalia and the United States of Americahttp://www.unicri.it/wwd/trafficking/minors/docs_ilr/convention_on_the_rights_of _the_child.pdf



except where the national standards are already higher. In this way, child rights standards are no longermerely an aspiration but, rather, are nationally binding on States. The Convention’s rights are universaland relevant in times of peace, war, and other armed conflicts.

G. SAARC Conventions ratified by IndiaTwo SAARC Conventions are relevant for the present study on human trafficking. These are—

• South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and CombatingTrafficking in Women and Children for Prostitution, 2002

• South Asian Association for Regional Cooperation (SAARC) Convention on Regional Arrangementsfor the Promotion of Child Welfare in South Asia, 2002

G.1 South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and CombatingTrafficking in Women and Children for Prostitution9 vii

The scope of the Convention is the further strengthening of existing arrangements on the protection ofthe rights of women and children in South Asia, and bringing to an end the illegal smuggling of womenand children and commercial sexual exploitation in this region, to promote cooperation amongst MemberStates to effectively deal with various aspects of prevention, interdiction, and suppression of traffickingin women and children, repatriation and rehabilitation of victims of trafficking, and preventing the useof women and children in international commercial sexual exploitation networks, particularly wherethe SAARC Member Countries are the countries of origin, transit, and destination. The Convention islegally binding upon its parties.

The SAARC Convention is limited only to trafficking of women and children for commercial sexualexploitation. It does not cover trafficking for other purposes or trafficking of men. The definition onlycovers the moving, selling, or buying of a person; it does not cover recruitment, harbouring, or transferor receipt that does not involve buying or selling.

It separates the means by which trafficking can occur from the definition of trafficking, which makesthe definition subject to multiple interpretations. Additionally, although the means include ‘otherlawful means’, they do not specifically list important means included in the Trafficking Protocol definition,namely, force, fraud other than for marriage, abuse of power, abuse of a position of vulnerability, andgiving or receiving payments or benefits to achieve the consent of a person having control over anotherperson.

Article 11 provides that the measures in the Convention are without prejudice to higher measures ofenforcement and protection according to relevant national laws and international agreements. Thismeans that member states can include broader provisions in their national legislation and are alsoobliged to comply with international standards. Thus, governments are under obligation to ensure thattheir respective national legislation in SAARC countries are strengthened sufficiently so that lawenforcement may be more effective.

G.2. South Asian Association for Regional Cooperation (SAARC) Convention on Regional Arrangements forthe Promotion of Child Welfare in South Asia10 viii

The Convention aims at placing the child first in national and regional programs of SAARC memberstates, thus improving the lives of the region’s children. The Convention also aims to instigate regional

9 Adopted unanimously by Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka in January 2002. Articles1, 2, 3, 4, 8, 9 http://www.unicri.it/wwd/trafficking/minors/docs_ilr/saarc_convention_on_regional_arrangements.pdf

10 Signed on January 5, 2002 by SAARC member countries: Articles: 4.3.a), 4.3.b), 5.d) http://www.unicri.it/wwd/trafficking/minors/docs_ilr/saarc_convention_on_regional_arrangements.pdf



cooperation on facilitating the safe development of children by understanding the rights of the SouthAsian child and creating appropriate arrangements for protecting them.

H. Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and PracticesSimilar to Slavery11 ix

The Convention aims at condemning new forms of slavery and servitude similar to slavery (not foreseenin the 1926 Slavery Convention), such as abuses arising from the adoption of children and the marriageof women without their consent, and provides for penal sanctions against the slave trade. Any disputesrelating to the convention are to be referred to the International Court of Justice. Under Article 1(d)parties to the Convention are required to adopt measures to bring about the complete abolition of anyinstitution or practice whereby a person under the age of 18 years is handed over by the natural parentsor the guardian to another person, whether for reward or not, with the purpose of exploitation.

I. ILO Convention Concerning Forced Labour No. 2912 x

This Convention calls for the suppression of forced or compulsory labour in all its forms. Forced labouris defined as ‘all work or service which is exacted from any person under the menace of any penalty andfor which the said person has not offered himself voluntarily.’ The Convention is the most widely ratifiedamong all the fundamental ILO Conventions.

See Annexure III for details of ILO Conventions ratified by India that are linked to trafficking.

6.3 Roles and Responsibilities of Key Players in International Law

There are several stakeholders who play an important role in combating trafficking and protectinghuman rights in the arena of international law:

• Charter-based monitoring bodies• Treaty-based monitoring bodies• Offices of the Special Rapporteurs• State Parties/ Governments• Civil Society actors and NGOs• Interpol and other international law enforcement bodies• Ministry of External Affairs• UN Agencies• SAARC Secretariat

The charter based and treaty based monitoring bodies of the UN are important actors in the enforcementof human rights since a certain moral pressure is created upon State Parties to report on progressivesteps that they have taken to protect and promote the rights enshrined in the respective treaties. Thereis scope for the Trafficking Protocols to be used more effectively in the future. In recent times there hasbeen some discussion about the possibility of treating trafficking in human beings as a crime againsthumanity by invoking the Rome Statute of the International Criminal Court13. This approach could bestudied in detail by both jurists and law enforcement officers to build a new jurisprudence that wouldbenefit victims of trafficking.

The Offices of the Special Rapporteurs, such as those on Violence against Women , through their specialreports and recommendations have been able to highlight specific violations. The scope for highlightingissues of trafficking through the offices of the Special Rapporteur is immense. Law enforcement bodies,

11 Entered into force on April 30, 1957 Articles: 1, 3, 6, 7 http://www.unicri.it/wwd/trafficking/minors/docs_ilr/supplementary_convention_on_the_abolition_of _slavery.pdf

12 Entered into force on May 1, 1932, Articles: 2, 11. http://www.unhchr.ch/html/menu3/b/31.htm13 See Trafficking in Human Beings As A Crime Against Humanity: Some Implications for the International Legal System,

Obokata Tom, International Comparative Law Quarterly, Vol. 54, April, 2005, pp 445-458



domestic and international, and the Ministry of External Affairs and Home Affairs could throughpartnerships with civil society groups begin to play a positive role in using international law to combatthe crime of trafficking more effectively, using the abovementioned mechanisms.

The SAARC Secretariat and UN Agencies play an important role in combating trans-border traffickingespecially in collaboration with the Governments in the region.

6.4 Rights of Victims

It is only in recent times that there has been an acknowledgment of the rights of victims in internationaljurisprudence. This has developed from the principle that the victim has been wronged, and thereforethere is a need for reparation and restitution.14 The United Nations Commission on Prevention of Crimeat the 7th UN Congress at Milan in 1985 adopted a Declaration of Basic Principles of Justice for Victimsof Crime and Abuse of Power15.

The Declaration provides victims of crime and abuse of power the right to be a party to the criminalproceedings against the accused. ‘Victims’ have been defined as persons who, individually or collectively,have suffered harm, including physical or mental injury, emotional suffering, economic loss, or impairmentof their fundamental rights through acts or omissions that are in violation of criminal laws operativewithin States, including those laws proscribing criminal abuse of power.

The Declaration recommends that victims should be treated with compassion and respect and calls uponthe judiciary and the administrative machinery to ensure that victims obtain redress through formal orinformal procedures. It also recognises that victims should be compensated in terms of restitution andreparation by the offender in the first instance and, if that is not possible, by the State.

The scope of using these principles with victims of trafficking would be a positive step in the interest ofa more progressive criminal justice delivery mechanism.

6.5 Extradition

ExtraterritorialityThere is a need to harmonise legal definitions, procedures, and co-operation at various levels bothnational, regional and international in accordance with international standards. This will help greatlyin apprehending offenders who commit offences in trafficking in one country, but escape to anothercounty to avoid being penalized. Such norms and procedures could be integrated into national penallaws; in addition there is a need for greater mutual co-operation through extradition treaty arrangements.In the cases of trafficking, there are provisions which have been dealt with in the Chapter on generalprovisions which tackle trafficking, even if the crime occurred outside India.16

Relevance of Extradition17

Extradition may be briefly described as the surrender of an alleged or convicted criminal by one State toanother. More precisely, extradition may be defined as the process by which one State, upon the requestof another, surrenders to the latter a person found within its jurisdiction for trial and punishment or, ifhe has been already convicted, only for punishment on account of a crime punishable by the laws of therequesting State and committed outside the territory of the requested State.

14 See page 160-63 Handbook on Human Rights for Judicial Officers, National Institute of Human Rights, National LawSchool of India University, 2000.

15 [G.A. res.40/34, annex, 40 U.N.GAOR Supp. (No.53) at 214, U.N.Doc.A/40/53(1985)]16 For example Section 366 B of the Indian Penal Code17 For this section please refer to the following link http://cbi.nic.in/interpol.htm



Extradition plays an important role in the international battle against crime. It owes its existence to theso-called principle of territoriality of criminal law, according to which a State will not apply its penalstatutes to acts committed outside its own boundaries, except where the protection of special nationalinterests is at stake. In view of the solidarity of nations in the repression of criminality, however, aState, though refusing to impose direct penal sanctions to offences committed abroad, is usually willingto cooperate otherwise in bringing the perpetrator to justice lest he go unpunished.

Position in IndiaIn India, the extradition of a fugitive from India to a foreign country, or vice-versa, is governed by theprovisions of the Extradition Act, 1962. The basis of extradition could be a treaty between India and aforeign country. Under section 3 of this Act, a notification could be issued by the Government of Indiaextending the provisions of the Act to the country/countries notified. Apart from treaties, there canalso be extradition arrangements. Such arrangements may not be in the form of a formal agreement, andsometimes could even be in the form of letters. It is clear, therefore, that a treaty that has been signedand ratified by the respective state parties would be enforceable in international law, and any breachwould be actionable. However, an arrangement is less formal and may not be enforceable. Annexure IVand V deal with details of India’s arrangements with Sri Lanka and Nepal.

Information regarding the fugitive criminals wanted in foreign countries is received directly from theconcerned country or through the General Secretariat of the ICPO-Interpol in the form of red notices.The Interpol Wing of the Central Bureau of Investigation immediately passes it on to the concernedpolice organizations. The Red Corner Notices received from the General Secretariat are circulated to allthe State Police authorities and immigration authorities.

The question arises that what action, if any, can be taken by the Police on receipt of informationregarding a fugitive criminal wanted in a foreign country. In this connection, the following provisionsof law are relevant:

Action can be taken under the Indian Extradition Act Article No. 34(b) of 1962. This Act providesprocedure for the arrest and extradition of fugitive criminals under certain conditions, which includereceipt of the request through diplomatic channels and under the warrant issued by a Magistrate havinga competent jurisdiction.

Action can also be taken under the provisions of Section 41 (1) (g) of the Cr.P.C 1973, which authorizesthe police to arrest a fugitive criminal without a warrant; however, they must immediately refer thematter to Interpol Wing for onward transmission to the Government of India for taking a decision onextradition or otherwise.

In case the fugitive criminal is an Indian national, action can also be taken under Section 188 Cr.P.C1973, as if the offence has been committed at any place in India at which he may be found. The trial ofsuch a fugitive criminal can only take place with the previous sanction of the Central Government.

6.7 Organised Crime

According to the United Nations Convention against Transnational Organised Crime18 ‘Organised criminalgroup’ means a structured group of three or more persons, existing for a period of time and acting inconcert with the aim of committing one or more serious crimes or offences established in accordancewith the Convention, in order to obtain, directly or indirectly, a financial or other material benefit.

18 Article 2 (a) United Nations Convention Against Transnational Organised Crime.



Deeply concerned by the negative economic and social implication of related organized activities andconvinced of the urgent need to strengthen cooperation to prevent and combat such activities moreeffectively at the national, regional, and international levels, the UN Convention against TransnationalOrganized Crime came into being.

Along with the above Convention on combating organized crimes, India is also party to the protocols ofthe United Nations. There are three Protocols which India has ratified. They represent a major stepforward in the fight against transnational organized crime. They deal with the fight against organizedcrime in general and also touch upon some of the major activities in which transnational organizedcrime is evident, such as money laundering, corruption, and the obstruction of investigations orprosecutions.

The United Nations Convention against Transnational Organized Crime19 is the main internationalinstrument in the fight against transnational organized crime. The Convention is further supplementedby three Protocols, which target specific areas and manifestations of organized crime: the Protocol toPrevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; the Protocol againstthe Smuggling of Migrants by Land, Sea and Air; and the Protocol against the Illicit Manufacturing ofand Trafficking in Firearms, their Parts and Components and Ammunition. Countries must become partiesto the Convention itself before they can become parties to any of the Protocols20.

The Convention represents a major step forward in the fight against transnational organized crime andsignifies the recognition by Member States of the seriousness of the problems posed by it, as well as theneed to foster and enhance close international cooperation in order to tackle those problems. Statesthat ratify this instrument commit themselves to taking a series of measures against transnationalorganized crime, including the creation of domestic criminal offences (participation in an organizedcriminal group, money laundering, corruption and obstruction of justice); the adoption of new andsweeping frameworks for extradition, mutual legal assistance and law enforcement cooperation; and thepromotion of training and technical assistance for building or upgrading the necessary capacity ofnational authorities21.

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children22 isthe first global legally binding instrument with an agreed definition on trafficking in persons. Theintention behind this definition is to facilitate convergence in national approaches with regard to theestablishment of domestic criminal offences that would support efficient international cooperation ininvestigating and prosecuting trafficking in persons cases. An additional objective of the Protocol is toprotect and assist the victims of trafficking in persons with full respect for their human rights23. The Protocol against the Smuggling of Migrants by Land, Sea and Air,24 deals with the growing problemof organized criminal groups who smuggle migrants, often at high risk to the migrants and at greatprofit for the offenders. A major achievement of the Protocol was that, for the first time in a globalinternational instrument, a definition of smuggling of migrants was developed and agreed upon. TheProtocol aims at preventing and combating the smuggling of migrants, as well as promoting cooperationamong States parties, while protecting the rights of smuggled migrants and preventing the worst formsof their exploitation which often characterize the smuggling process.

19 Adopted by General Assembly resolution 55/25 of 15 November 2000. It opened for signature by Member States at aHigh-level Political Conference convened for that purpose in Palermo, Italy, on 12-15 December 2000 and entered intoforce on 29 September 2003.

20 http://www.unodc.org/unodc/en/crime_cicp_convention.html21 Id.22 Adopted by General Assembly resolution 55/25. It entered into force on 25 December 2003.23 http://www.unodc.org/unodc/en/crime_cicp_convention.html24 Adopted by General Assembly resolution 55/25, entered into force on 28 January 2004



The Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Componentsand Ammunition25 is the first legally binding instrument on small arms that has been adopted at theglobal level, to promote, facilitate and strengthen cooperation among States Parties in order to prevent,combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and componentsand ammunition. By ratifying the Protocol, States make a commitment to adopt a series of crime-control measures and implement in their domestic legal order three sets of normative provisions: thefirst one relates to the establishment of criminal offences related to illegal manufacturing of, andtrafficking in, firearms on the basis of the Protocol requirements and definitions; the second to a systemof government authorizations or licensing intending to ensure legitimate manufacturing of, and traffickingin, firearms; and the third one to the marking and tracing of firearms26.

Thus, law enforcement agencies have been envisaged as having a crucial role in combating organizedcrime. This may be by taking action under domestic laws (Refer to Chapter on General Provisions) oracting through government agencies or bringing it to their notice so that action may be taken againstoffenders.

Annexure IV contains relevant provisions of international protocols dealing with organized crime.

25 Adopted by General Assembly resolution 55/255 of 31 May 2001. It entered into force on 3 July 200526 http://www.unodc.org/unodc/en/crime_cicp_convention.html



ANNEXURE I

List of UN Treaties and Treaty Bodies27

The international human rights treaties of the United Nations that establish committees of experts (often referred to as‘treaty bodies’) to monitor their implementation are the following:

(1) The International Covenant on Economic, Social, and Cultural Rights (CESCR), which is monitored by theCommittee on Economic, Social, and Cultural Rights;

(2) The International Covenant on Civil and Political Rights (CCPR), which is monitored by the Human RightsCommittee;

(3) The Optional Protocol to the International Covenant on Civil and Political Rights (CCPR-OP1), which isadministered by the Human Rights Committee; and

(4) The Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at theabolition of the death penalty (CCPR-OP2-DP);

(5) The International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which ismonitored by the Committee on the Elimination of Racial Discrimination;

(6) The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which ismonitored by the Committee on the Elimination of Discrimination against Women;

(7) The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women(CEDAW-OP);

(8) The Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT),which is monitored by the Committee against Torture;

(9) The Convention on the Rights of the Child (CRC), which is monitored by the Committee on the Rights ofthe Child;

(10) The Optional Protocol to the Convention on the Rights of the Child (CRC-OP-AC) on the involvement ofchildren in armed conflict;

(11) The Optional Protocol to the Convention on the Rights of the Child (CRC-OP-SC) on the sale of children,child prostitution, and child pornography;

(12) The International Convention on the Protection of the Rights of All Migrant Workers and Members of TheirFamilies (MWC).

27 http://www.law-lib.utoronto.ca/resources/orgs/intorg3.htm#5



ANNEXURE II

Status of International Instruments Signed/ Ratified by India28

Name of Convention Status

1. UN Convention on the Rights of the Child Ratified on 11 December, 1992

2. Optional Protocol to CRC on Sale of Children, ChildProstitution, Child Pornography Signed on 15 November, 2004

3. Optional Protocol to CRC on involvement of Children in Armed Conflict Signed on 15 November, 2004

4. Protocol to Prevent, Suppress and Punish Trafficking in

Persons especially Women and Children Signed on 12 December, 2002

5. Convention on the Elimination of All Forms of Ratified on 9 July, 1993, with aDiscrimination Against Women (CEDAW) declaration/reservation

6. SAARC Convention of Preventing and Combating Trafficking Signed on 5 January, 2002, atin Women and Children for Prostitution 2002 and SAARC the Eleventh SAARC Summit inConvention on Regional Arrangements for the Promotion of Kathmandu on 4-6 January, 2002Child Welfare in South Asia

7. Covenant on Economic, Social and Cultural Rights 10 July, 1979

8. Covenant on Civil and Political Rights 10 July, 1979

9. Convention on Elimination of Racial Discrimination 4 January, 1969

10. Convention Against Torture Signed 4 October, 1997

11. Convention on Rights of the Child 11 January, 1993

12. ILO Conventions See next page for details

28 India Country Report, Ministry of Women and Child Development, 2005, and http://www.law-lib.utoronto.ca/resources/orgs/intorg3.htm#5



ANNEXURE III

List of ILO (International Labour Organisation) ConventionsRatified by India29

Sl. No. and Title of Convention Date ofNo. ratification

1. No.1 Hours of Work (Industry) Convention, 1919 14.07.19212.* No.2 Unemployment Convention, 1919 14.07.19213. No.4 Night Work (Women) Convention, 1919 14.07.19214. No.5 Minimum Age (Industry) Convention, 1919 09.09.19555. No.6 Night Work of Young Persons (Industry) Convention, 1919 14.07.19216. No.11 Right of Association (Agriculture) Convention, 1921 11.05.19237. No.14 Weekly Rest (Industry) Convention, 1921 11.05.19238. No.15 Minimum Age (Trimmers and Stokers) Convention, 1921 20.11.19229. No.16 Medical Examination of Young Persons (Sea) Convention, 1921 20.11.1922

10. No.18 Workmen’s Compensation (Occupational Diseases) Convention, 1925 30.09.192711. No.19 Equality of Treatment (Accident Compensation) Convention, 1925 30.09.192712. No.21 Inspection of Emigrants Convention, 1926 14.01.192813. No.22 Seamen’s Articles of Agreement Convention, 1926 31.10.193214. No.26 Minimum Wage-Fixing Machinery, Convention, 1928 10.01.195515. No.27 Marking of Weight (Packages Transported by Vessels) Convention, 1929 07.09.193116. No.29 Forced Labour Convention, 1930 30.11.195417. No.32 Protection Against Accidents (Dockers) Convention (Revised), 1932 10.02.1947

18.@ No.41 Night Work (Women) Convention (Revised), 1934 22.11.193519. No.42 Workmen’s Compensation (Occupational Diseases) Convention (Revised), 1934 13.01.196420 No.45 Underground Work (Women) Convention, 1935 25.03.1938

21. No.80 Final Articles Revision Convention, 1946 17.11.194722.** No.81 Labour Inspection Convention, 1947 07.04.1949

23. No.88 Employment Services Convention, 1948 24.06.195924. No.89 Night Work (Women) Convention (Revised), 1948 27.02.195025. No.90 Night Work of Young Persons (Industry) (Revised), 1948 27.02.195026. No.100 Equal Remuneration Convention, 1951 25.09.195827. No.107 Indigenous and Tribal Population Convention, 1957 29.09.195828. No.111 Discrimination (Employment & Occupation) Convention, 1958 03.06.196029. No.116 Final Articles Revision Convention, 1961 21.06.1962

30.# No.118 Equality of Treatment (Social Security) Convention, 1962 19.08.196431.@@ No.123 Minimum Age (Underground Work) Convention, 1965 20.03.1975

32. No.115 Radiation Protection Convention, 1960 17.11.197533. No.141 Rural Workers’ Organisation Convention, 1975 18.08.197734. No.144 Tripartite Consultation (International Labour Standards) Convention, 1976 27.02.197835. No.136 Benzene Convention, 1971 11.06.1991

36.## No.160 Labour Statistics Convention, 1985 01.04.199237. No.147 Merchant Shipping (Minimum Standards), 1976 26.09.199638. No.122 Employment Policy Convention 1964 17.11.199839. No.105 Abolition of Forced Labour, 1957 18.05.2000

* Later denounced, The Convention requires, internal furnishing of statistics concerning unemployment everythree months which is considered not practicable.

@ Convention denounced as a result of ratification of Convention No.89.** Excluding Part II.# Branches (c) and (g) and Branches (a) to (c) and (i).

@@ Minimum Age initially specified was 16 years but was raised to 18 years in 1989.## Article 8 of Part – II.

29 http://labour.nic.in/welcome.html



ANNEXURE IV

Important International Documents Dealing withOrganised Crime and Human Trafficking

A. Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing theUnited Nations Convention against Transnational Organized Crime

B. Protocol against the Smuggling of Migrants by Land, Sea, and Air, supplementing the United Nations Conventionagainst transnational Organized Crime

A. Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women andChildren, supplementing the United Nations Convention against Transnational OrganizedCrime.

PreambleThe States Parties to this Protocol,Declaring that effective action to prevent and combat trafficking in persons, especially women and children, requires acomprehensive international approach in the countries of origin, transit and destination that includes measures toprevent such trafficking, to punish the traffickers andto protect the victims of such trafficking, including by protecting their internationally recognized human rights,

Taking into account the fact that, despite the existence of a variety of international instruments containing rules andpractical measures to combat the exploitation of persons, especially women and children, there is no universal instrumentthat addresses all aspects of trafficking in persons,

Concerned that, in the absence of such an instrument, persons who are vulnerable to trafficking will not be sufficientlyprotected,

Recalling General Assembly resolution 53/111 of 9 December 1998, in which the Assembly decided to establish an open-ended intergovernmental ad hoc committee for the purpose of elaborating a comprehensive international conventionagainst transnational organized crime and of discussing the elaboration of, inter alia, an international instrumentaddressing trafficking in women and children,

Convinced that supplementing the United Nations Convention against Transnational Organized Crime with an internationalinstrument for the prevention, suppression and punishment of trafficking in persons, especially women and children,will be useful in preventing and combating that crime,

Have agreed as follows:I. General provisionsArticle 1Relation with the United Nations Convention against Transnational Organized Crime1. This Protocol supplements the United Nations Convention against Transnational Organized Crime. It shall be interpretedtogether with the Convention.2. The provisions of the Convention shall apply, mutatis mutandis, to this Protocol unless otherwise provided herein.3. The offences established in accordance with article 5 of this Protocol shall be regarded as offences established inaccordance with the Convention.

Article 2Statement of purposeThe purposes of this Protocol are:(a) To prevent and combat trafficking in persons, paying particular attention to women and children;(b) To protect and assist the victims of such trafficking, with full respect for their human rights; and(c) To promote cooperation among States Parties in order to meet those objectives.

Article 3Use of termsFor the purposes of this Protocol:(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, bymeans of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of poweror of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a personhaving control over another person, for the purpose of exploitation.Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation,forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;



(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of thisarticle shall be irrelevant where any of the means set forth in subparagraph (a) have been used;(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall beconsidered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of thisarticle;(d) “Child” shall mean any person under eighteen years of age.

Article 4Scope of applicationThis Protocol shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of theoffences established in accordance with article 5 of this Protocol, where those offences are transnational in nature andinvolve an organized criminal group, as well asto the protection of victims of such offences.

Article 5Criminalization1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offencesthe conduct set forth in article 3 of this Protocol, when committed intentionally.2. Each State Party shall also adopt such legislative and other measures as may be necessary to establish as criminaloffences:(a) Subject to the basic concepts of its legal system, attempting to commit an offence established in accordance withparagraph 1 of this article;(b) Participating as an accomplice in an offence established in accordance with paragraph 1 of this article; and(c) Organizing or directing other persons to commit an offence established in accordance with paragraph 1 of thisarticle.

II. Protection of victims of trafficking in personsArticle 6Assistance to and protection of victims of trafficking in persons1. In appropriate cases and to the extent possible under its domestic law, each State Party shall protect the privacy andidentity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such traffickingconfidential.2. Each State Party shall ensure that its domestic legal or administrative system contains measures that provide tovictims of trafficking in persons, in appropriate cases:(a) Information on relevant court and administrative proceedings;(b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminalproceedings against offenders, in a manner not prejudicial to the rights of the defence.3. Each State Party shall consider implementing measures to provide for the physical, psychological and social recoveryof victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations,other relevant organizations and other elements of civil society, and, in particular, the provision of:(a) Appropriate housing;(b) Counselling and information, in particular as regards their legal rights, in a language that the victims of traffickingin persons can understand;(c) Medical, psychological and material assistance; and(d) Employment, educational and training opportunities.4. Each State Party shall take into account, in applying the provisions of this article, the age, gender and special needsof victims of trafficking in persons, in particular the special needs of children, including appropriate housing, educationand care.5. Each State Party shall endeavour to provide for the physical safety of victims of trafficking in persons while they arewithin its territory.6. Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking inpersons the possibility of obtaining compensation for damage suffered.

Article 7Status of victims of trafficking in persons in receiving States1. In addition to taking measures pursuant to article 6 of this Protocol, each State Party shall consider adoptinglegislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarilyor permanently, in appropriate cases.2. In implementing the provision contained in paragraph 1 of this article, each State Party shall give appropriateconsideration to humanitarian and compassionate factors.

Article 8Repatriation of victims of trafficking in persons1. The State Party of which a victim of trafficking in persons is a national or in which the person had the right ofpermanent residence at the time of entry into the territory of the receiving State Party shall facilitate and accept, withdue regard for the safety of that person, the return of that person without undue or unreasonable delay.2. When a State Party returns a victim of trafficking in persons to a State Party of which that person is a national or in



which he or she had, at the time of entry into the territory of the receiving State Party, the right of permanentresidence, such return shall be with due regard for the safety of that person and for the status of any legal proceedingsrelated to the fact that the person is a victim of trafficking and shall preferably be voluntary.3. At the request of a receiving State Party, a requested State Party shall, without undue or unreasonable delay, verifywhether a person who is a victim of trafficking in persons is its national or had the right of permanent residence in itsterritory at the time of entry into the territory of the receiving State Party.4. In order to facilitate the return of a victim of trafficking in persons who is without proper documentation, the StateParty of which that person is a national or in which he or she had the right of permanent residence at the time of entryinto the territory of the receiving State Partyshall agree to issue, at the request of the receiving State Party, such travel documents or other authorization as may benecessary to enable the person to travel to and re-enter its territory.5. This article shall be without prejudice to any right afforded to victims of trafficking in persons by any domestic lawof the receiving State Party.6. This article shall be without prejudice to any applicable bilateral or multilateral agreement or arrangement thatgoverns, in whole or in part, the return of victims of trafficking in persons.

III. Prevention, cooperation and other measuresArticle 9Prevention of trafficking in persons1. States Parties shall establish comprehensive policies, programmes and other measures:(a) To prevent and combat trafficking in persons; and(b) To protect victims of trafficking in persons, especially women and children, from re-victimization.2. States Parties shall endeavour to undertake measures such as research, information and mass media campaigns andsocial and economic initiatives to prevent and combat trafficking in persons.3. Policies, programmes and other measures established in accordance with this article shall, as appropriate, includecooperation with non-governmental organizations, other relevant organizations and other elements of civil society.4. States Parties shall take or strengthen measures, including through bilateral or multilateral cooperation, to alleviatethe factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopmentand lack of equal opportunity.5. States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures,including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitationof persons, especially women and children, that leads to trafficking.

Article 10Information exchange and training1. Law enforcement, immigration or other relevant authorities of States Parties shall, as appropriate, cooperate with oneanother by exchanging information, in accordance with their domestic law, to enable them to determine:(a) Whether individuals crossing or attempting to cross an international border with travel documents belonging toother persons or without travel documents are perpetrators or victims of trafficking in persons;(b) The types of travel document that individuals have used or attempted to use to cross an international border for thepurpose of trafficking in persons; and(c) The means and methods used by organized criminal groups for the purpose of trafficking in persons, including therecruitment and transportation of victims, routes and links between and among individuals and groups engaged in suchtrafficking, and possible measures for detecting them.2. States Parties shall provide or strengthen training for law enforcement, immigration and other relevant officials inthe prevention of trafficking in persons. The training should focus on methods used in preventing such trafficking,prosecuting the traffickers and protecting the rights of the victims, including protecting the victims from the traffickers.The training should also take into account the need to consider human rights and child- and gender-sensitive issues andit should encourage cooperation with non-governmental organizations, other relevant organizations and other elementsof civil society.3. A State Party that receives information shall comply with any request by the State Party that transmitted theinformation that places restrictions on its use.

Article 11Border measures1. Without prejudice to international commitments in relation to the free movement of people, States Parties shallstrengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking inpersons.2. Each State Party shall adopt legislative or other appropriate measures to prevent, to the extent possible, means oftransport operated by commercial carriers from being used in the commission of offences established in accordance witharticle 5 of this Protocol.3. Where appropriate, and without prejudice to applicable international conventions, such measures shall includeestablishing the obligation of commercial carriers, including any transportation company or the owner or operator ofany means of transport, to ascertain that all passengers are in possession of the travel documents required for entry intothe receiving State.4. Each State Party shall take the necessary measures, in accordance with its domestic law, to provide for sanctions incases of violation of the obligation set forth in paragraph 3 of this article.



5. Each State Party shall consider taking measures that permit, in accordance with its domestic law, the denial of entryor revocation of visas of persons implicated in the commission of offences established in accordance with this Protocol.6. Without prejudice to article 27 of the Convention, States Parties shall consider strengthening cooperation amongborder control agencies by, inter alia, establishing and maintaining direct channels of communication.

Article 12Security and control of documentsEach State Party shall take such measures as may be necessary, within available means:(a) To ensure that travel or identity documents issued by it are of such quality that they cannot easily be misused andcannot readily be falsified or unlawfully altered, replicated or issued; and(b) To ensure the integrity and security of travel or identity documents issued by or on behalf of the State Party and toprevent their unlawful creation, issuance and use.

Article 13Legitimacy and validity of documentsAt the request of another State Party, a State Party shall, in accordance with its domestic law, verify within a reasonabletime the legitimacy and validity of travel or identity documents issued or purported to have been issued in its name andsuspected of being used for trafficking in persons.

IV. Final provisionsArticle 14Saving clause1. Nothing in this Protocol shall affect the rights, obligations and responsibilities of States and individuals underinternational law, including international humanitarian law and international human rights law and, in particular,where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle ofnon-refoulement as contained therein.2. The measures set forth in this Protocol shall be interpreted and applied in a way that is not discriminatory to personson the ground that they are victims of trafficking in persons. The interpretation and application of those measures shallbe consistent with internationally recognized principles of non-discrimination.

Article 15Settlement of disputesl. States Parties shall endeavour to settle disputes concerning the interpretation or application of this Protocol throughnegotiation.2. Any dispute between two or more States Parties concerning the interpretation or application of this Protocol thatcannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, besubmitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable toagree on the organization of the arbitration, any one of those States Parties may refer the dispute to the InternationalCourt of Justice by request in accordance with the Statute of the Court.3. Each State Party may, at the time of signature, ratification, acceptance or approval of or accession to this Protocol,declare that it does not consider itself bound by paragraph 2 of this article. The other States Parties shall not be boundby paragraph 2 of this article with respect to any State Party that has made such a reservation.4. Any State Party that has made a reservation in accordance with paragraph 3 of this article may at any time withdrawthat reservation by notification to the Secretary-General of the United Nations.

Article 16Signature, ratification, acceptance, approval and accession1. This Protocol shall be open to all States for signature from 12 to 15 December 2000 in Palermo, Italy, and thereafterat United Nations Headquarters in New York until 12 December 2002.2. This Protocol shall also be open for signature by regional economic integration organizations provided that at leastone member State of such organization has signed this Protocol in accordance with paragraph 1 of this article.3. This Protocol is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approvalshall be deposited with the Secretary-General of the United Nations. A regional economic integration organization maydeposit its instrument of ratification, acceptance or approval if at least one of its member States has done likewise. Inthat instrument of ratification, acceptance or approval, such organization shall declare the extent of its competencewith respect to the matters governed by this Protocol. Such organization shall also inform the depositary of any relevantmodification in the extent of its competence.4. This Protocol is open for accession by any State or any regional economic integration organization of which at leastone member State is a Party to this Protocol. Instruments of accession shall be deposited with the Secretary-General ofthe United Nations. At the time of its accession, a regional economic integration organization shall declare the extentof its competence with respect to matters governed by this Protocol. Such organization shall also inform the depositaryof any relevant modification in the extent of its competence.

Article 17Entry into force1. This Protocol shall enter into force on the ninetieth day after the date of deposit of the fortieth instrument ofratification, acceptance, approval or accession, except that it shall not enter into force before the entry into force of the



Convention. For the purpose of this paragraph, any instrument deposited by a regional economic integration organizationshall not be counted as additional to those deposited by member States of such organization.2. For each State or regional economic integration organization ratifying, accepting, approving or acceding to thisProtocol after the deposit of the fortieth instrument of such action, this Protocol shall enter into force on the thirtiethday after the date of deposit by such State or organization of the relevant instrument or on the date this Protocol entersinto force pursuant to paragraph 1 of this article, whichever is the later.

Article 18Amendment1. After the expiry of five years from the entry into force of this Protocol, a State Party to the Protocol may propose anamendment and file it with the Secretary-General of the United Nations, who shall thereupon communicate the proposedamendment to the States Parties and to the Conference of the Parties to the Convention for the purpose of consideringand deciding on the proposal. The States Parties to this Protocol meeting at the Conference of the Parties shall makeevery effort to achieve consensus on each amendment. If all efforts at consensus have been exhausted and no agreementhas been reached, the amendment shall, as a last resort, require for its adoption a two-thirds majority vote of the StatesParties to this Protocol present and voting at the meeting of the Conference of the Parties.2. Regional economic integration organizations, in matters within their competence, shall exercise their right to voteunder this article with a number of votes equal to the number of their member States that are Parties to this Protocol.Such organizations shall not exercise their right to vote if their member States exercise theirs and vice versa.3. An amendment adopted in accordance with paragraph 1 of this article is subject to ratification, acceptance orapproval by States Parties.4. An amendment adopted in accordance with paragraph 1 of this article shall enter into force in respect of a State Partyninety days after the date of the deposit with the Secretary-General of the United Nations of an instrument of ratification,acceptance or approval of such amendment.5. When an amendment enters into force, it shall be binding on those States Parties which have expressed their consentto be bound by it. Other States Parties shall still be bound by the provisions of this Protocol and any earlier amendmentsthat they have ratified, accepted or approved.

Article 19Denunciation1. A State Party may denounce this Protocol by written notification to the Secretary-General of the United Nations. Suchdenunciation shall become effective one year after the date of receipt of the notification by the Secretary-General.2. A regional economic integration organization shall cease to be a Party to this Protocol when all of its member Stateshave denounced it.

Article 20Depositary and languages1. The Secretary-General of the United Nations is designated depositary of this Protocol.2. The original of this Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equallyauthentic, shall be deposited with the Secretary-General of the United Nations.IN WITNESS WHEREOF, the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments,have signed this Protocol.

B. Protocol against the Smuggling of Migrants by Land, Sea, and Air, supplementing the UnitedNations Convention against transnational Organised Crime.

PreambleThe States Parties to this Protocol,Declaring that effective action to prevent and combat the smuggling of migrants by land, sea and air requires acomprehensive international approach, including cooperation, the exchange of information and other appropriate measures,including socio-economic measures, at the national, regional and international levels,

Recalling General Assembly resolution 54/212 of 22 December 1999, in which the Assembly urged Member States and theUnited Nations system to strengthen international cooperation in the area of international migration and developmentin order to address the root causes of migration, especially those related to poverty, and to maximize the benefits ofinternational migration to those concerned, and encouraged, where relevant, interregional, regional and subregionalmechanisms to continue to address the question of migration and development,Convinced of the need to provide migrants with humane treatment and full protection of their rights,

Taking into account the fact that, despite work undertaken in other international forums, there is no universal instrumentthat addresses all aspects of smuggling of migrants and other related issues,

Concerned at the significant increase in the activities of organized criminal groups in smuggling of migrants and otherrelated criminal activities set forth in this Protocol, which bring great harm to the States concerned,

Also concerned that the smuggling of migrants can endanger the lives or security of the migrants involved,



Recalling General Assembly resolution 53/111 of 9 December 1998, in which the Assembly decided to establish an open-ended intergovernmental ad hoc committee for the purpose of elaborating a comprehensive international conventionagainst transnational organized crime and of discussing the elaboration of, inter alia, an international instrumentaddressing illegal trafficking in and transporting of migrants, including by sea,

Convinced that supplementing the United Nations Convention against Transnational Organized Crime with an internationalinstrument against the smuggling of migrants by land, sea and air will be useful in preventing and combating thatcrime,

Have agreed as follows:I. General provisionsArticle 1Relation with the United Nations Convention against Transnational Organized Crime1. This Protocol supplements the United Nations Convention against Transnational Organized Crime. It shall be interpretedtogether with the Convention.2. The provisions of the Convention shall apply, mutatis mutandis, to this Protocol unless otherwise provided herein.3. The offences established in accordance with article 6 of this Protocol shall be regarded as offences established inaccordance with the Convention.

Article 2Statement of purposeThe purpose of this Protocol is to prevent and combat the smuggling of migrants, as well as to promote cooperationamong States Parties to that end, while protecting the rights of smuggled migrants.

Article 3Use of termsFor the purposes of this Protocol:(a) “Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or othermaterial benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanentresident;(b) “Illegal entry” shall mean crossing borders without complying with the necessary requirements for legal entry intothe receiving State;(c) “Fraudulent travel or identity document” shall mean any travel or identity document:(i) That has been falsely made or altered in some material way by anyone other than a person or agency lawfullyauthorized to make or issue the travel or identity document on behalf of a State; or(ii) That has been improperly issued or obtained through misrepresentation, corruption or duress or in any otherunlawful manner; or(iii) That is being used by a person other than the rightful holder;(d) “Vessel” shall mean any type of water craft, including non-displacement craft and seaplanes, used or capable ofbeing used as a means of transportation on water, except a warship, naval auxiliary or other vessel owned or operated bya Government and used, for the time being, only on government non-commercial service.

Article 4Scope of applicationThis Protocol shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of theoffences established in accordance with article 6 of this Protocol, where the offences are transnational in nature andinvolve an organized criminal group, as well as to the protection of the rights of persons who have been the object ofsuch offences.

Article 5Criminal liability of migrantsMigrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object ofconduct set forth in article 6 of this Protocol.

Article 6Criminalization1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences,when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit:(a) The smuggling of migrants;(b) When committed for the purpose of enabling the smuggling of migrants:(i) Producing a fraudulent travel or identity document;(ii) Procuring, providing or possessing such a document;(c) Enabling a person who is not a national or a permanent resident to remain in the State concerned without complyingwith the necessary requirements for legally remaining in the State by the means mentioned in subparagraph (b) of thisparagraph or any other illegal means.2. Each State Party shall also adopt such legislative and other measures as may be necessary to establish as criminaloffences:



(a) Subject to the basic concepts of its legal system, attempting to commit an offence established in accordance withparagraph 1 of this article;(b) Participating as an accomplice in an offence established in accordance with paragraph 1 (a), (b) (i) or (c) of thisarticle and, subject to the basic concepts of its legal system, participating as an accomplice in an offence established inaccordance with paragraph 1 (b) (ii) of this article;(c) Organizing or directing other persons to commit an offence established in accordance with paragraph 1 of thisarticle.3. Each State Party shall adopt such legislative and other measures as may be necessary to establish as aggravatingcircumstances to the offences established in accordance with paragraph 1 (a), (b) (i) and (c) of this article and, subjectto the basic concepts of its legal system, to the offences established in accordance with paragraph 2 (b) and (c) of thisarticle, circumstances:(a) That endanger, or are likely to endanger, the lives or safety of the migrants concerned; or(b) That entail inhuman or degrading treatment, including for exploitation, of such migrants.4. Nothing in this Protocol shall prevent a State Party from taking measures against a person whose conduct constitutesan offence under its domestic law.

II. Smuggling of migrants by seaArticle 7CooperationStates Parties shall cooperate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea, inaccordance with the international law of the sea.

Article 8Measures against the smuggling of migrants by sea1. A State Party that has reasonable grounds to suspect that a vessel that is flying its flag or claiming its registry, thatis without nationality or that, though flying a foreign flag or refusing to show a flag, is in reality of the nationality ofthe State Party concerned is engaged in the smuggling of migrants by sea may request the assistance of other StatesParties in suppressing the use of the vessel for that purpose. The States Parties so requested shall render such assistanceto the extent possible within their means.2. A State Party that has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordancewith international law and flying the flag or displaying the marks of registry of another State Party is engaged in thesmuggling of migrants by sea may so notify the flag State, request confirmation of registry and, if confirmed, requestauthorization from the flag State to take appropriate measures with regard to that vessel. The flag State may authorizethe requesting State, inter alia:(a) To board the vessel;(b) To search the vessel; and(c) If evidence is found that the vessel is engaged in the smuggling of migrants by sea, to take appropriate measureswith respect to the vessel and persons and cargo on board, as authorized by the flag State.3. A State Party that has taken any measure in accordance with paragraph 2 of this article shall promptly inform the flagState concerned of the results of that measure.4. A State Party shall respond expeditiously to a request from another State Party to determine whether a vessel that isclaiming its registry or flying its flag is entitled to do so and to a request for authorization made in accordance withparagraph 2 of this article.5. A flag State may, consistent with article 7 of this Protocol, subject its authorization to conditions to be agreed by itand the requesting State, including conditions relating to responsibility and the extent of effective measures to betaken. A State Party shall take no additional measures without the express authorization of the flag State, except thosenecessary to relieve imminent danger to the lives of persons or those which derive from relevant bilateral or multilateralagreements.6. Each State Party shall designate an authority or, where necessary, authorities to receive and respond to requests forassistance, for confirmation of registry or of the right of a vessel to fly its flag and for authorization to take appropriatemeasures. Such designation shall be notified through the Secretary-General to all other States Parties within one monthof the designation.7. A State Party that has reasonable grounds to suspect that a vessel is engaged in the smuggling of migrants by sea andis without nationality or may be assimilated to a vessel without nationality may board and search the vessel. If evidenceconfirming the suspicion is found, that State Party shall take appropriate measures in accordance with relevant domesticand international law.

Article 9Safeguard clauses1. Where a State Party takes measures against a vessel in accordance with article 8 of this Protocol, it shall:(a) Ensure the safety and humane treatment of the persons on board;(b) Take due account of the need not to endanger the security of the vessel or its cargo;(c) Take due account of the need not to prejudice the commercial or legal interests of the flag State or any otherinterested State;(d) Ensure, within available means, that any measure taken with regard to the vessel is environmentally sound.



2. Where the grounds for measures taken pursuant to article 8 of this Protocol prove to be unfounded, the vessel shallbe compensated for any loss or damage that may have been sustained, provided that the vessel has not committed anyact justifying the measures taken.3. Any measure taken, adopted or implemented in accordance with this chapter shall take due account of the need notto interfere with or to affect:(a) The rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international lawof the sea; or(b) The authority of the flag State to exercise jurisdiction and control in administrative, technical and social mattersinvolving the vessel.4. Any measure taken at sea pursuant to this chapter shall be carried out only by warships or military aircraft, or byother ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.

III. Prevention, cooperation and other measuresArticle 10Information1. Without prejudice to articles 27 and 28 of the Convention, States Parties, in particular those with common borders orlocated on routes along which migrants are smuggled, shall, for the purpose of achieving the objectives of this Protocol,exchange among themselves, consistent with their respective domestic legal and administrative systems, relevantinformation on matters such as:(a) Embarkation and destination points, as well as routes, carriers and means of transportation, known to be or suspectedof being used by an organized criminal group engaged in conduct set forth in article 6 of this Protocol;(b) The identity and methods of organizations or organized criminal groups known to be or suspected of being engagedin conduct set forth in article 6 of this Protocol;(c) The authenticity and proper form of travel documents issued by a State Party and the theft or related misuse of blanktravel or identity documents;(d) Means and methods of concealment and transportation of persons, the unlawful alteration, reproduction or acquisitionor other misuse of travel or identity documents used in conduct set forth in article 6 of this Protocol and ways ofdetecting them;(e) Legislative experiences and practices and measures to prevent and combat the conduct set forth in article 6 of thisProtocol; and(f) Scientific and technological information useful to law enforcement, so as to enhance each other’s ability to prevent,detect and investigate the conduct set forth in article 6 of this Protocol and to prosecute those involved.2. A State Party that receives information shall comply with any request by the State Party that transmitted theinformation that places restrictions on its use.

Article 11Border measures1. Without prejudice to international commitments in relation to the free movement of people, States Parties shallstrengthen, to the extent possible, such border controls as may be necessary to prevent and detect the smuggling ofmigrants.2. Each State Party shall adopt legislative or other appropriate measures to prevent, to the extent possible, means oftransport operated by commercial carriers from being used in the commission of the offence established in accordancewith article 6, paragraph 1 (a), of this Protocol.3. Where appropriate, and without prejudice to applicable international conventions, such measures shall includeestablishing the obligation of commercial carriers, including any transportation company or the owner or operator ofany means of transport, to ascertain that all passengers are in possession of the travel documents required for entry intothe receiving State.4. Each State Party shall take the necessary measures, in accordance with its domestic law, to provide for sanctions incases of violation of the obligation set forth in paragraph 3 of this article.5. Each State Party shall consider taking measures that permit, in accordance with its domestic law, the denial of entryor revocation of visas of persons implicated in the commission of offences established in accordance with this Protocol.6. Without prejudice to article 27 of the Convention, States Parties shall consider strengthening cooperation amongborder control agencies by, inter alia, establishing and maintaining direct channels of communication.

Article 12Security and control of documentsEach State Party shall take such measures as may be necessary, within available means:(a) To ensure that travel or identity documents issued by it are of such quality that they cannot easily be misused andcannot readily be falsified or unlawfully altered, replicated or issued; and(b) To ensure the integrity and security of travel or identity documents issued by or on behalf of the State Party and toprevent their unlawful creation, issuance and use.

Article 13Legitimacy and validity of documentsAt the request of another State Party, a State Party shall, in accordance with its domestic law, verify within a reasonabletime the legitimacy and validity of travel or identity documents issued or purported to have been issued in its name andsuspected of being used for purposes of conduct set forth in article 6 of this Protocol.



Article 14Training and technical cooperation1. States Parties shall provide or strengthen specialized training for immigration and other relevant officials in preventingthe conduct set forth in article 6 of this Protocol and in the humane treatment of migrants who have been the object ofsuch conduct, while respecting their rights as set forth in this Protocol.2. States Parties shall cooperate with each other and with competent international organizations, non-governmentalorganizations, other relevant organizations and other elements of civil society as appropriate to ensure that there isadequate personnel training in their territories to prevent, combat and eradicate the conduct set forth in article 6 ofthis Protocol and to protect the rights of migrants who have been the object of such conduct. Such training shallinclude:(a) Improving the security and quality of travel documents;(b) Recognizing and detecting fraudulent travel or identity documents;(c) Gathering criminal intelligence, relating in particular to the identification of organized criminal groups known to beor suspected of being engaged in conduct set forth in article 6 of this Protocol, the methods used to transport smuggledmigrants, the misuse of travel or identity documents for purposes of conduct set forth in article 6 and the means ofconcealment used in the smuggling of migrants;(d) Improving procedures for detecting smuggled persons at conventional and non-conventional points of entry andexit; and(e) The humane treatment of migrants and the protection of their rights as set forth in this Protocol.3. States Parties with relevant expertise shall consider providing technical assistance to States that are frequentlycountries of origin or transit for persons who have been the object of conduct set forth in article 6 of this Protocol.States Parties shall make every effort to provide the necessary resources, such as vehicles, computer systems anddocument readers, to combat the conduct set forth in article 6.

Article 15Other prevention measures1. Each State Party shall take measures to ensure that it provides or strengthens information programmes to increasepublic awareness of the fact that the conduct set forth in article 6 of this Protocol is a criminal activity frequentlyperpetrated by organized criminal groups for profit and that it poses serious risks to the migrants concerned.2. In accordance with article 31 of the Convention, States Parties shall cooperate in the field of public information forthe purpose of preventing potential migrants from falling victim to organized criminal groups.3. Each State Party shall promote or strengthen, as appropriate, development programmes and cooperation at thenational, regional and international levels, taking into account the socio-economic realities of migration and payingspecial attention to economically and socially depressed areas, in order to combat the root socio-economic causes of thesmuggling of migrants, such as poverty and underdevelopment.

Article 16Protection and assistance measures1. In implementing this Protocol, each State Party shall take, consistent with its obligations under international law, allappropriate measures, including legislation if necessary, to preserve and protect the rights of persons who have been theobject of conduct set forth in article 6of this Protocol as accorded under applicable international law, in particular the right to life and the right not to besubjected to torture or other cruel, inhuman or degrading treatment or punishment.2. Each State Party shall take appropriate measures to afford migrants appropriate protection against violence that maybe inflicted upon them, whether by individuals or groups, by reason of being the object of conduct set forth in article6 of this Protocol.3. Each State Party shall afford appropriate assistance to migrants whose lives or safety are endangered by reason ofbeing the object of conduct set forth in article 6 of this Protocol.4. In applying the provisions of this article, States Parties shall take into account the special needs of women andchildren.5. In the case of the detention of a person who has been the object of conduct set forth in article 6 of this Protocol, eachState Party shall comply with its obligations under the Vienna Convention on Consular Relations, where applicable,including that of informing the person concerned without delay about the provisions concerning notification to andcommunication with consular officers.

Article 17Agreements and arrangementsStates Parties shall consider the conclusion of bilateral or regional agreements or operational arrangements orunderstandings aimed at:(a) Establishing the most appropriate and effective measures to prevent and combat the conduct set forth in article 6 ofthis Protocol; or(b) Enhancing the provisions of this Protocol among themselves.



Article 18Return of smuggled migrants1. Each State Party agrees to facilitate and accept, without undue or unreasonable delay, the return of a person who hasbeen the object of conduct set forth in article 6 of this Protocol and who is its national or who has the right ofpermanent residence in its territory at the time of return.2. Each State Party shall consider the possibility of facilitating and accepting the return of a person who has been theobject of conduct set forth in article 6 of this Protocol and who had the right of permanent residence in its territory atthe time of entry into the receiving State in accordance with its domestic law.3. At the request of the receiving State Party, a requested State Party shall, without undue or unreasonable delay, verifywhether a person who has been the object of conduct set forth in article 6 of this Protocol is its national or has the rightof permanent residence in its territory.4. In order to facilitate the return of a person who has been the object of conduct set forth in article 6 of this Protocoland is without proper documentation, the State Party of which that person is a national or in which he or she has theright of permanent residence shall agree to issue, at the request of the receiving State Party, such travel documents orother authorization as may be necessary to enable the person to travel to and reenter its territory.5. Each State Party involved with the return of a person who has been the object of conduct set forth in article 6 of thisProtocol shall take all appropriate measures to carry out the return in an orderly manner and with due regard for thesafety and dignity of the person.6. States Parties may cooperate with relevant international organizations in the implementation of this article.7. This article shall be without prejudice to any right afforded to persons who have been the object of conduct set forthin article 6 of this Protocol by any domestic law of the receiving State Party.8. This article shall not affect the obligations entered into under any other applicable treaty, bilateral or multilateral, orany other applicable operational agreement or arrangement that governs, in whole or in part, the return of persons whohave been the object of conduct set forth in article 6 of this Protocol.

IV. Final provisionsArticle 19Saving clause1. Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals underinternational law, including international humanitarian law and international human rights law and, in particular,where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle ofnonrefoulement as contained therein.2. The measures set forth in this Protocol shall be interpreted and applied in a way that is not discriminatory to personson the ground that they are the object of conduct set forth in article 6 of this Protocol. The interpretation andapplication of those measures shall be consistent with internationally recognized principles of non-discrimination.

Article 20Settlement of disputesl. States Parties shall endeavour to settle disputes concerning the interpretation or application of this Protocol throughnegotiation.2. Any dispute between two or more States Parties concerning the interpretation or application of this Protocol thatcannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, besubmitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable toagree on the organization of the arbitration, any one of those States Parties may refer the dispute to the InternationalCourt of Justice by request in accordance with the Statute of the Court.3. Each State Party may, at the time of signature, ratification, acceptance or approval of or accession to this Protocol,declare that it does not consider itself bound by paragraph 2 of this article. The other States Parties shall not be boundby paragraph 2 of this article with respect to any State Party that has made such a reservation.4. Any State Party that has made a reservation in accordance with paragraph 3 of this article may at any time withdrawthat reservation by notification to the Secretary-General of the United Nations.

Article 21Signature, ratification, acceptance, approval and accession1. This Protocol shall be open to all States for signature from 12 to 15 December 2000 in Palermo, Italy, and thereafterat United Nations Headquarters in New York until 12 December 2002.2. This Protocol shall also be open for signature by regional economic integration organizations provided that at leastone member State of such organization has signed this Protocol in accordance with paragraph 1 of this article.3. This Protocol is subject to ratification, acceptance or approval.Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations.A regional economic integration organization may deposit its instrument of ratification, acceptance or approval if atleast one of its member States has done likewise. In that instrument of ratification, acceptance or approval, suchorganization shall declare the extent of its competence with respect to the matters governed by this Protocol. Suchorganization shall also inform the depositary of any relevant modification in the extent of its competence.4. This Protocol is open for accession by any State or any regional economic integration organization of which at leastone member State is a Party to this Protocol. Instruments of accession shall be deposited with the Secretary-General ofthe United Nations. At the time of its accession, a regional economic integration organization shall declare the extentof its competence with respect to matters governed by this Protocol. Such organization shall also inform the depositaryof any relevant modification in the extent of its competence.



Article 22Entry into force1. This Protocol shall enter into force on the ninetieth day after the date of deposit of the fortieth instrument ofratification, acceptance, approval or accession, except that it shall not enter into force before the entry into force of theConvention. For the purpose of this paragraph, any instrument deposited by a regional economic integration organizationshall not be counted as additional to those deposited by member States of such organization.2. For each State or regional economic integration organization ratifying, accepting, approving or acceding to thisProtocol after the deposit of the fortieth instrument of such action, this Protocol shall enter into force on the thirtiethday after the date of deposit by such State or organization of the relevant instrument or on the date this Protocol entersinto force pursuant to paragraph 1 of this article, whichever is the later.

Article 23Amendment1. After the expiry of five years from the entry into force of this Protocol, a State Party to the Protocol may propose anamendment and file it with the Secretary-General of the United Nations, who shall thereupon communicate the proposedamendment to the States Parties and to the Conference of the Parties to the Convention for the purpose of consideringand deciding on the proposal. The States Parties to this Protocol meeting at the Conference of the Parties shall makeevery effort to achieve consensus on each amendment. If all efforts at consensus have been exhausted and no agreementhas been reached, the amendment shall, as a last resort, require for its adoption a two-thirds majority vote of the StatesParties to this Protocol present and voting at the meeting of the Conference of the Parties.2. Regional economic integration organizations, in matters within their competence, shall exercise their right to voteunder this article with a number of votes equal to the number of their member States that are Parties to this Protocol.Such organizations shall not exercise their right to vote if their member States exercise theirs and vice versa.3. An amendment adopted in accordance with paragraph 1 of this article is subject to ratification, acceptance orapproval by States Parties.4. An amendment adopted in accordance with paragraph 1 of this article shall enter into force in respect of a State Partyninety days after the date of the deposit with the Secretary-General of the United Nations of an instrument of ratification,acceptance or approval of such amendment.5. When an amendment enters into force, it shall be binding on those States Parties which have expressed their consentto be bound by it. Other States Parties shall still be bound by the provisions of this Protocol and any earlier amendmentsthat they have ratified, accepted or approved.

Article 24Denunciation1. A State Party may denounce this Protocol by written notification to the Secretary-General of the United Nations. Suchdenunciation shall become effective one year after the date of receipt of the notification by the Secretary-General.2. A regional economic integration organization shall cease to be a Party to this Protocol when all of its member Stateshave denounced it.

Article 25Depositary and languages1. The Secretary-General of the United Nations is designated depositary of this Protocol.2. The original of this Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equallyauthentic, shall be deposited with the Secretary-General of the United Nations.IN WITNESS WHEREOF, the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments,have signed this Protocol.



ENDNOTESUniversal Declaration of Human Rights, 1948

i Article 3Everybody has the right to life, liberty, and security of person.

Article 4No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all theirforms.

Article 5No one shall be subject to cruel, inhuman, or degrading treatment or punishment.

Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitutionof Others, 1951

ii Article 1The Parties to the present Convention agree to punish any person who, to gratify the passions ofanother:1. Procures, entices or leads away, for purposes of prostitution, another person, even with the consentof that person;2. Exploits the prostitution of another person, even with the consent of that person.

Article 2The Parties to the present Convention further agree to punish any person who:1. Keeps or manages, or knowingly finances or takes part in the financing of a brothel2. Knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitutionof others.

Article 4To the extent permitted by domestic law, international participation in the acts referred to in articles1 and 2 shall be punishable.To the extent permitted by domestic law, acts of participation shall be treated as separate offenceswhenever this is necessary to prevent impunity.

Article 16The Parties to the present Convention agree to take or to encourage, through their public and privateeducational, health, social, economic and other related services, measures for the prevention ofprostitution, and of the rehabilitation and social adjustment of the victims of prostitution, and of theoffences referred to in the present Convention.

Article 17The Parties to the present Convention undertake, in connection with immigration and emigration, toadopt or maintain such measures as are required, in terms of their obligations under the presentConvention, to check the traffic in persons of either sex for the purpose of prostitution.

In particular they undertake:(1) To make such regulations as are necessary for the protection of immigrants or emigrants and, inparticular, women and children, both at the place of arrival and departure and while en route;

(2) To arrange for appropriate publicity, warning the public of the dangers of the aforesaid traffic;

(3) To take appropriate measures to ensure supervision of railway stations, airports, seaports and enroute, and of other public places, in order to prevent international traffic in persons for the purpose ofprostitution;

(4) To take appropriate measures in order that the appropriate authorities be informed of the arrival ofpersons who appear, prima facie, to be the principals and accomplices in or victims of such traffic.



Article 20The Parties to the present Convention shall, if they have not already done so, take the necessarymeasures for the supervision of employment agencies in order to prevent persons seeking employment,in particular women and children, from being exposed to the danger of prostitution.

International Covenant on Civil and Political Rights, 1976iii Article 8

1. No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited.2. No one shall be held in servitude.(a) No one shall be required to perform forced or compulsory labour;(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labourmay be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentenceto such punishment by a competent court;(c) For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include:(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is underdetention in consequence of a lawful order of a court, or of a person during conditional release fromsuch detention;(ii) Any service of a military character and, in countries where conscientious objection is recognized,any national service required by law of conscientious objectors;(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of thecommunity;(iv) Any work or service that forms part of normal civil obligations.

Article 241. Every child shall have, without any discrimination as to race, colour, sex, language, religion, nationalor social origin, property or birth, the right to such measures of protection as are required by his statusas a minor, on the part of his family, society and the State.2. Every child shall be registered immediately after birth and shall have a name.3. Every child has the right to acquire a nationality.

International Covenant on Economic, Social and Cultural Rights, 1976iv Article 10 (3)

Special measures of protection and assistance should be taken on behalf of all children and youngpersons without any discrimination for reasons of parentage or other conditions. Children and youngpersons should be protected from economic and social exploitation. Their employment in work harmfulto their morals or health or dangerous to life or likely to hamper their normal development should bepunishable by law. States should also set age limits below which the paid employment of child labourshould be prohibited and punishable by law.

Convention of the Elimination of all forms of Discrimination Against Women (CEDAW), 1981v Article 1

For the purposes of the present Convention, the term “discrimination against women” shall mean anydistinction, exclusion or restriction made on the basis of sex which has the effect or purpose ofimpairing or nullifying the recognition, enjoyment, or exercise by women, irrespective of their maritalstatus, on a basis of equality of men and women, of human rights and fundamental freedoms in thepolitical, economic, social, cultural, civil, or any other field.

Article 3States Parties shall take in all fields, in particular in the political, social, economic and cultural fields,all appropriate measures, including legislation, to ensure the full development and advancement ofwomen, for the purpose of guaranteeing them the exercise and enjoyment of human rights andfundamental freedoms on a basis of equality with men.

Article 5States Parties shall take all appropriate measures:(a) To modify the social and cultural patterns of conduct of men and women, with a view to achievingthe elimination of prejudices and customary and all other practices which are based on the idea of the



inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;(b) To ensure that family education includes a proper understanding of maternity as a social functionand the recognition of the common responsibility of men and women in the upbringing and developmentof their children, it being understood that the interest of the children is the primordial consideration inall cases.

Article 6States Parties shall take all appropriate measures, including legislation, to suppress all forms of trafficin women and exploitation of prostitution of women.

Article 10States Parties shall take all appropriate measures to eliminate discrimination against women in order toensure to them equal rights with men in the field of education and in particular to ensure, on a basis ofequality of men and women:(a) The same conditions for career and vocational guidance, for access to studies and for the achievementof diplomas in educational establishments of all categories in rural as well as in urban areas; thisequality shall be ensured in pre-school, general, technical, professional, and higher technical education,as well as in all types of vocational training;(b) Access to the same curricula, the same examinations, teaching staff with qualifications of the samestandard, and school premises and equipment of the same quality;(c) The elimination of any stereotyped concept of the roles of men and women at all levels and in allforms of education by encouraging coeducation and other types of education which will help to achievethis aim and, in particular, by the revision of textbooks and school programmes and the adaptation ofteaching methods;(d) The same opportunities to benefit from scholarships and other study grants;(e) The same opportunities for access to programmes of continuing education, including adult andfunctional literacy programmes, particularly those aimed at reducing, at the earliest possible time, anygap in education existing between men and women;(f) The reduction of female student drop-out rates and the organisation of programmes for girls andwomen who have left school prematurely;(g) The same opportunities to participate actively in sports and physical education;(h) Access to specific educational information to help to ensure the health and well-being of families,including information and advice on family planning.

Article 111. States Parties shall take all appropriate measures to eliminate discrimination against women in thefield of employment in order to ensure, on a basis of equality of men and women, the same rights, inparticular:(a) The right to work as an inalienable right of all human beings;(b) The right to the same employment opportunities, including the application of the same criteria forselection in matters of employment;(c) The right to free choice of profession and employment, the right to promotion, job security and allbenefits and conditions of service and the right to receive vocational training and retraining, includingapprenticeships, advanced vocational training, and recurrent training;(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work ofequal value, as well as equality of treatment in the evaluation of the quality of work;(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidityand old age and other incapacity to work, as well as the right to paid leave;(f) The right to protection of health and to safety in working conditions, including the safeguarding ofthe function of reproduction.

2. In order to prevent discrimination against women on the grounds of marriage or maternity and toensure their effective right to work, States Parties shall take appropriate measures:(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or ofmaternity leave and discrimination in dismissals on the basis of marital status;



(b) To introduce maternity leave with pay or with comparable social benefits without loss of formeremployment, seniority, or social allowances;(c) To encourage the provision of the necessary supporting social services to enable parents to combinefamily obligations with work responsibilities and participation in public life, in particular throughpromoting the establishment and development of a network of child-care facilities;(d) To provide special protection to women during pregnancy in types of work proved to be harmful tothem.

3. Protective legislation relating to matters covered in this article shall be reviewed periodically in thelight of scientific and technological knowledge and shall be revised, repealed, or extended as necessary.

Convention on the Rights of the Child, 1990vi Article 1

For the purposes of the present Convention, a child means every human being below the age of eighteenyears unless under the law applicable to the child, majority is attained earlier.

Article 111. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements oraccession to existing agreements.

Article 191. States Parties shall take all appropriate legislative, administrative, social, and educational measuresto protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligenttreatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legalguardian(s), or any other person who has the care of the child.2. Such protective measures should, as appropriate, include effective procedures for the establishmentof social programs to provide necessary support for the child and for those who have the care of thechild, as well as for other forms of prevention and for identification, reporting, referral, investigation,treatment and follow-up of instances of child maltreatment described heretofore and, as appropriate,for judicial involvement.

Article 321. States Parties recognize the right of the child to be protected from economic exploitation and fromperforming any work that is likely to be hazardous or to interfere with the child’s education, or to beharmful to the child’s health or physical, mental, spiritual, moral, or social development.

Article 34States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. Forthese purposes, States Parties shall in particular take all appropriate national, bilateral, and multilateralmeasures to prevent:(a) The inducement or coercion of a child to engage in any unlawful sexual activity;(b) The exploitative use of children in prostitution or other unlawful sexual practices;(c) The exploitative use of children in pornographic performances and materials.

Article 35States Parties shall take all appropriate national, bilateral, and multilateral measures to prevent theabduction of, the sale of, or traffic in children for any purpose or in any form.

Article 36States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects ofthe child’s welfare.



SAARC Convention on Preventing and Combating Trafficking in Women and Children forProstitution, 2002

vii Article- 1 - DefinitionsFor the purpose of this Convention:

1) ‘Child’ means a person who has not attained the age of 18 years;2) ‘Prostitution’ means the sexual exploitation or abuse of persons for commercial purposes;3) “Trafficking” means the moving, selling, or buying of women and children for prostitution withinand outside a country for monetary or other considerations with or without the consent of the personsubjected to trafficking;4) ‘Traffickers’ means persons, agencies, or institutions engaged in any form of trafficking;5) ‘Persons subjected to trafficking’ means women and children victimised or forced into prostitution bythe traffickers by deception, threat, coercion, kidnapping, sale, fraudulent marriage, child marriage, orany other unlawful means;6) ‘Protective home’ means a home established or recognised by a Government of a Member State for thereception, care, treatment and rehabilitation of rescued or arrested persons subjected to trafficking.7) ‘Repatriation’ means return to the country of origin of the person subjected to trafficking acrossinternational frontiers.

Article – II - Scope of the ConventionThe purpose of this Convention is to promote cooperation amongst Member States so that they mayeffectively deal with the various aspects of prevention, interdiction, and suppression of trafficking inwomen and children; the repatriation and rehabilitation of victims of trafficking and prevent the use ofwomen and children in international prostitution networks, particularly where the countries of theSAARC region are the countries of origin, transit, and destination.

Article - III - Offences1. The State Parties to the Convention shall take effective measures to ensure that trafficking in anyform is an offence under their respective criminal law and shall make such an offence punishable byappropriate penalties which take into account its grave nature.2. The State Parties to the Convention, in their respective territories, shall provide for punishment ofany person who keeps, maintains, or manages or knowingly finances or takes part in the financing of aplace used for the purpose of trafficking, and knowingly lets or rents a building or other place or anypart thereof for the purpose of trafficking.3. Any attempt or abetment to commit any crime mentioned in paras 1 and 2 above or their financingshall also be punishable.

Article – IV - Aggravating Circumstances1. The State Parties to the Convention shall ensure that their courts having jurisdiction over theoffences committed under this Convention, can take into account factual circumstances which makethe commission of such offences particularly grave, viz.—e) the victimisation or trafficking of children;

Article – VIII - Measures to Prevent and Interdict Trafficking in Women and Children1. The State Parties to the Convention shall provide sufficient means, training and assistance to theirrespective authorities to enable them to effectively conduct inquiries, investigations, and prosecutionof offences under this Convention.2. The State Parties to the Convention shall sensitize their law enforcement agencies and the judiciaryin respect of the offences under this Convention and other related factors that encourage trafficking inwomen and children.3. The State Parties to the Convention shall establish a Regional Task Force consisting of officials of theMember States to facilitate implementation of the provisions of this Convention and to undertakeperiodic reviews.4. The State Parties to the Convention may also, by mutual agreement, set up bilateral mechanisms toeffectively implement the provisions of the Convention, including appropriate mechanisms for cooperationto interdict trafficking in women and children for prostitution.



5. The State Parties to the Convention shall exchange, on a regular basis, information in respect ofagencies, institutions, and individuals who are involved in trafficking in the region, and also identifymethods and routes used by the traffickers through land, water or air. The information so furnishedshall include information of the offenders, their fingerprints, photographs, methods of operation, policerecords, and records of conviction.6. The State Parties to the Convention may consider taking necessary measures for the supervision ofemployment agencies in order to prevent trafficking in women and children under the guise of recruitment.7. The State Parties to the Convention shall endeavour to focus preventive and development efforts onareas that are known to be source areas for trafficking.8. The State Parties to the Convention shall promote awareness, inter-alia, through the use of themedia, of the problem of trafficking in Women and Children and its underlying causes, including theprojection of negative images of women.

Article – IX - Care, Treatment, Rehabilitation and Repatriation of the Victims1. The State Parties to the Convention shall work out modalities for repatriation of the victims to thecountry of origin.2. Pending the completion of arrangements for the repatriation of victims of cross-border trafficking,the State Parties to the Convention shall make suitable provisions for their care and maintenance. Theprovision of legal advice and health care facilities shall also be made available to such victims.3. The State Parties to the Convention shall establish protective homes or shelters for rehabilitation ofvictims of trafficking. Suitable provisions shall also be made for granting legal advice, counselling, jobtraining, and health care facilities for the victims.4. The State Parties to the Convention may also authorise the recognised non-governmental organisationsto establish such protective homes or shelters for providing suitable care and maintenance for thevictims of trafficking.5. The State Parties to the Convention shall encourage recognised non-governmental organisations inefforts aimed at prevention, intervention, and rehabilitation, including through the establishment ofsuch protective homes or shelters for providing suitable care and maintenance for the victims of trafficking.

SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia,2002

viii Article IV - Regional Priorities3. States Parties shall ensure that appropriate legal and administrative mechanisms and social safetynets and defences are always in place to:a) Ensure that their national laws protect the child from any form of discrimination, abuse, neglect,exploitation, torture or degrading treatment, trafficking and violence.b) Discourage entry of children into hazardous and harmful labour, and ensure implementation of theNinth SAARC Summit decision to eliminate the evil of child labour from the SAARC region. In doing so,States Parties shall adopt a multi-pronged strategy including the provision of opportunities at theprimary level and supportive social safety nets for families that tend to provide child labourers.

Article V - Regional ArrangementsTo ensure consistent focus on and pursuance of the regional priorities delineated above, States Partiesshall promote solidarity, co-operation and collective action between and among SAARC Member Statesin the arena of child rights and development. States Parties view such cooperation as mutually reinforcingand capable of enhancing the quality and impact of their national efforts to create the enabling conditionsand environment for full realization of child rights and attainment of the highest possible standard ofchild well-being. In pursuance hereof, States Parties shall:d) strengthen the relevant SAARC Bodies dealing with issues of child welfare to formulate and implementregional strategies and measures for prevention of inter-country abuse and exploitation of the child,including the trafficking of children for sexual, economic, and other purposes.



Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions andPractices Similar to Slavery, 1957

ix Article 1Each of the States Parties to this Convention shall take all practicable and necessary legislative andother measures to bring about progressively and as soon as possible the complete abolition orabandonment of the following institutions and practices, where they still exist and whether or not theyare covered by the definition of slavery contained in article 1 of the Slavery Convention signed atGeneva on 25 September, 1926:(a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of hispersonal services or of those of a person under his control as security for a debt; if the value of thoseservices as reasonably assessed is not applied towards the liquidation of the debt, or the length andnature of those services are not respectively limited and defined;(b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom, or agreementbound to live and labour on land belonging to another person and to render some determinate serviceto such other person, whether for reward or not, and is not free to change his status;(c) Any institution or practice whereby:(i) A woman, without the right to refuse, is promised or given in marriage on payment of a considerationin money or in kind to her parents, guardian, family, or any other person or group; or(ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person forvalue received or otherwise; or(iii) A woman on the death of her husband is liable to be inherited by another person;(d) Any institution or practice whereby a child or young person under the age of 18 years, is deliveredby either or both of his natural parents or by his guardian to another person, whether for reward or not,with a view to the exploitation of the child or young person or of his labour.

Article 31. The act of conveying or attempting to convey slaves from one country to another by whatever meansof transport, or of being accessory thereto, shall be a criminal offence under the laws of the StatesParties to this Convention and persons convicted thereof shall be liable to very severe penalties.2. (a) The States Parties shall take all effective measures to prevent ships and aircraft authorized to flytheir flags from conveying slaves and to punish persons guilty of such acts or of using national flags forthat purpose.(b) The States Parties shall take all effective measures to ensure that their ports, airfields, and coastsare not used for the conveyance of slaves.3. The States Parties to this Convention shall exchange information in order to ensure the practical co-ordination of the measures taken by them in combating the slave trade and shall inform each other ofevery case of the slave trade, and of every attempt to commit this criminal offence, which comes totheir notice.

Article 61. The act of enslaving another person or of inducing another person to give himself or a persondependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being aparty to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of theStates Parties to this Convention and persons convicted thereof shall be liable to punishment.2. Subject to the provisions of the introductory paragraph of article 1 of this Convention, the provisionsof paragraph 1 of the present article shall also apply to the act of inducing another person to placehimself or a person dependent upon him into the servile status resulting from any of the institutions orpractices mentioned in article 1, to any attempt to perform such acts, to being accessory thereto, andto being a party to a conspiracy to accomplish any such acts.

Article 7For the purposes of the present Convention:(a) ‘Slavery’ means, as defined in the Slavery Convention of 1926, the status or condition of a personover whom any or all of the powers attaching to the right of ownership are exercised, and ‘slave’ meansa person in such condition or status;



(b) ‘A person of servile status’ means a person in the condition or status resulting from any of theinstitutions or practices mentioned in article 1 of this Convention;(c) ‘Slave trade’ means and includes all acts involved in the capture, acquisition, or disposal of a personwith intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to sellingor exchanging him; all acts of disposal by sale or exchange of a person acquired with a view to beingsold or exchanged; and, in general, every act of trade or transport in slaves by whatever means ofconveyance.

ILO Convention Concerning Forced Labour No. 29, 1932x Article 2

1. For the purposes of this Convention the term ‘forced or compulsory labour’ shall mean all work orservice which is exacted from any person under the menace of any penalty and for which the saidperson has not offered himself voluntarily.2. Nevertheless, for the purposes of this Convention the term ‘forced or compulsory labour’ shall notinclude:(a) Any work or service exacted in virtue of compulsory military service laws for work of a purelymilitary character;(b) Any work or service which forms part of the normal civic obligations of the citizens of a fully self-gaveling country;(c) Any work or service exacted from any person as a consequence of a conviction in a court of law,provided that the said work or service is carried out under the supervision and control of a publicauthority and that the said person is not hired to or placed at the disposal of private individuals,companies, or associations;(d) Any work or service exacted in cases of emergency, that is to say, in the event of war or of acalamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizooticdiseases, invasion by animal, insect or vegetable pests, and in general any circumstance that wouldendanger the existence or the well- being of the whole or part of the population;(e) Minor communal services of a kind which, being performed by the members of the community in thedirect interest of the said community, can therefore be considered as normal civic obligations incumbentupon the members of the community, provided that the members of the community or their directrepresentatives shall have the right to be consulted in regard to the need for such services.

Article 111. Only adult able-bodied males who are of an apparent age of not less than 18 and not more than 45years may be called upon for forced or compulsory labour. Except in respect of the kinds of labourprovided for in article 10 of this Convention, the following limitations and conditions shall apply:(a) Whenever possible prior determination by a medical officer appointed by the administration thatthe persons concerned are not suffering from any infectious or contagious disease and that they arephysically fit for the work required and for the conditions under which it is to be carried out;(b) Exemption of school teachers and pupils and of officials of the administration in general;(c) The maintenance in each community of the number of adult able-bodied men indispensable forfamily and social life;(d) Respect for conjugal and family ties.2. For the purposes of subparagraph (c) of the preceding paragraph, the regulations provided for inarticle 23 of this Convention shall fix the proportion of the resident adult able-bodied males who maybe taken at any one time for forced or compulsory labour, provided always that this proportion shall inno case exceed 25 per cent. In fixing this proportion the competent authority shall take account of thedensity of the population, of its social and physical development, of the seasons, and of the work whichmust be done by the persons concerned on their own behalf in their locality, and, generally, shall haveregard to the economic and social necessities of the normal life of the community concerned.



ACCRONYMS

AIR All India ReporterApp. ApplicationBom Bombay

BOMLR Bombay Law ReporterCal Calcutta

CARA Central Adoption Resource AgencyCEGAT Customs Excise and Gold Control (Appellate) Tribunal Cr. LJ Criminal Law JournalCr. PC Criminal Procedure Code

Cri. CriminalCSE Commercial Sexual ExploitationCWC Child Welfare CommitteeFIR First Information ReportHC High CourtIEA Indian Evidence Act, 1862IPC Indian Penal Code, 1860

ITPA Immoral Traffic (Prevention) Act, 1956JJA Juvenile Justice (Care and Protection of Children) Act, 2000

Juvenile Justice Act, 2000 Juvenile Justice (Care and Protection of Children) Act, 2000Lah Lahore

MCOCA Maharashtra Control of Organised Crime Act, 1999MLJ Maharashtra Law JournalMP Madhya Pradesh

NCT National Capital TerritoryNo. Number

Para ParagraphPUDR People’s Union for Democratic RightsPunj. Punjab

Raj RajasthanRev. Revision

SAARC South Asian Association for Regional CooperationSC Supreme Court

SCC Supreme Court CasesSec. SectionSPO Special Police OfficerTPO Trafficking Police Officeru/s. Under Section

UNODC United Nations Office on Drugs and CrimeUP Uttar Pradeshv. Versus

WP Writ Petition


